James R. Balmforth: What Happens If A Married Couple Divorces And Neither Wants Custody Of The Child?

They have to share custody or one of them will receive custody. These parents have a child and they are going to be held to care for their child under the laws of the State of Utah.

When a married couple makes the decision to pursue a legal separation, they are looking to have a legally recognized transition in their marriage…one that involves similar characteristics and considerations seen in divorce (e.g., custody, visitation, support, property, debt, etc.).

Child Custody During Separation

If the decision to legally separate has been made and the couple has minor children from their marriage, separated parents rights, child custody, visitation rights, and support will have to be addressed. As with divorce, neither parent has the right to deny visitation rights of the other parent from their children, unless a court determines otherwise. When married couples with children separate, they usually fall into one of two scenarios…the first involving separation prior to filing for the legal separation and separation after filing for legal separation. When the spouses decide to separate prior to the filing, both parents have equal visitation rights to visit and spend time with the children without legal restrictions. Even when one spouse moves out and makes no efforts to continue to care for the children in the other spouse’s care, the spouse caring for the children must still afford the same rights and provide better child support while separated, as if the moving spouse was providing continued care. Thus, to change the structure and address parental rights to custody, visitation, and support, a petition for child support and custody will need to be filed. As with divorce, there are times when emergency or temporary order for child custody and visitation as well as support is necessary. When this is necessary, the court can issue orders to address these needs. If you are seeking an emergency court order, you will generally be required to demonstrate that any contact from the other spouse will result in serious risk or harm to the children. Temporary orders, on the other hand, involves establishing child custody and visitation rights and terms until the court has the opportunity to hear the matter and issue subsequent orders.

Different types of custody in Utah:

• Legal custody

• Physical Custody

• Sole Custody

• Joint Custody

When it comes to making the decisions about and for the minor child, the court will assign legal rights child custody to one or both of the parents. These are decisions impacting the child’s environment such as where they will go to school, their religious activities, and medical care. If the court wants both parents to be involved in this decision making process, they will most likely order joint legal custody. On the other hand, if the court feels that one parent should be the decision maker, they will likely order sole legal custody to that parent.

When it comes to making decisions about with whom the child will live with, this is known as physical custody. This is distinguishable from legal custody as it focuses on the day to day responsibility of caring for your child. Like legal custody, the court may order joint or sole physical custody and visitation rights for both. In many states, the laws are intended to ensure that both parents are involved with their children after divorce. Thus, absent certain reasons (e.g., criminal history, violence, drug and alcohol abuse, etc.) that may place the child in danger, courts will often look towards a joint physical custody model.

If sole physical custody is ordered, the parent with physical custody will be referred to as the custodial parent, while the other parent will be the noncustodial parent. In these situations, the noncustodial parent will have visitation rights. So, in the event of separation and child custody, there will be an agreed to schedule where the noncustodial parent will be able to spend time with their child.

Visitation rights in a legal separation

In some visitation schedules, if the noncustodial parent has a history of violence, abuse, or drug and alcohol abuse, there will be some restrictions added to their visitation rights such as they may be required to have someone else present during their visitation time. This is referred to as supervised visitation. The individual overseeing the visitation will generally be appointed by the court or in some situations, be decided by the parents with the court’s approval. If possible, it is generally beneficial if the spouses can decide who gets custody during a separation; negotiate a separation and child custody as well as visitation rights agreement without requiring a court hearing. If both spouses agree to the terms, the court can review the plan, and if accepted, will be incorporated into a custody order and separation legal rights for the estranged parents. Ultimately, the plan will need to be created in the best interest of the children.

It is important to understand that every legal separation is different, but that the above information is a general overview of child custody and visitation rights in a legal separation. Laws for child custody and visitation will vary from state to state, so it is recommended that you seek the guidance of a qualified family attorney to ensure that you take the appropriate steps, understand the parental rights during separation and get proper visitation rights so as to protect yourself during the process.
If you and your former spouse agree on custody, the court will normally ratify your agreement without considering the details of how you lead your life. A judge won’t know (or necessarily ask) whether one of you is living with another person unless your ex brings it to the judge’s attention. If you and your spouse are battling over custody, however, the traditional advice is to not live with a new partner and to be discreet in your sexual activity, at least until the court makes a decision. This advice applies to both fault and no-fault divorces, as a parent’s living arrangement is always admissible in a custody dispute on the theory that a court needs as much information as possible to determine “the best interests of the child.” We use the word “traditional” to describe the “no sex, no living with anyone” advice. This is because many states now have more relaxed legal attitudes toward living together.

While we can’t say that most judges are enthusiastic about granting custody to a parent who is part of an unmarried couple, judges will not necessarily deny custody to a parent solely because the parent lives with someone else, especially when the new relationship is stable and nurturing. Therefore, the decision to live or not live with someone (other than a platonic roommate) while fighting over custody should be decided situation by situation, state by state. Especially if your former spouse is likely to make an issue of it, you should consult with a family law attorney to find out about local practices and prejudices.

In all states, child custody and visitation issues are decided according to “the best interests of the child.” This means that the judge who hears the case will consider all evidence before deciding who will provide the better home. Although mothers are more often granted physical custody than are fathers, particularly for young children, there is no longer an automatic preference in favor of women. Today, many men win physical custody of their children.

Frequently asked questions about custody and visitation include:

• If I live with a man, can my children be taken from me?

• If my husband is an alcoholic (or a recently recovering alcoholic), will he be able to get custody of (or visitation with) the children?

• I was once arrested for possession of marijuana; does this mean I can’t get custody?

• My income comes from Social Security disability and other public programs, while my husband has a well-paying job. Does this mean he’ll get custody of the kids?

The answer to all of those questions is, “It depends.” The law doesn’t say that adultery, smoking marijuana, or even being involved in antisocial conduct means you can’t win, or will lose, custody. In addition, the fact that one parent’s income is much larger than the other’s isn’t necessarily a reason the court will use to award the more affluent parent custody. Many factors not just whether or not you’re living with someone else are related to what is in a child’s best interest. The court’s decision will normally favor the parent who will best maintain stability in the child’s life. The way each parent lives can be an important factor when a court decides custody issues. In any given case, the judge may consider one person’s lifestyle to be more in the best interest of the child than the others. In a few states, a judge can use a parent’s cohabitation to deny custody. Courts in a few other states have similarly disapproved of cohabitation and have forced a change in custody, especially where the children were aware of their custodial parents’ intimate conduct. In general, however, the bottom line is that the judge, as a human being, will apply his or her own standards and prejudices when deciding which parent gets custody. Some judges don’t like unmarried persons living together, even though society no longer considers living together the “no-no” it was 30 years ago.

Custody Issues If You Have Been Divorced for Some Time

Now suppose you have been divorced for some time and have custody of your children. You want to move in with a new partner, but want to be sure this won’t give your former spouse legal grounds to challenge your custody of your children. The question of child custody can always be reexamined by the court. If a judge finds that it’s in the best interest of your children to change the custody of your kids to the other parent, then the judge can order this. State law varies as to whether a judge can consider your living with someone to be a negative factor in deciding whether or not custody arrangements should be modified.

Anatomy of a Contested Custody Case

In many places, fighting over custody is no longer as simple as going into court with your arguments at the ready. Now, parents with custody disputes usually must attend court-ordered mediation sessions to try to work out a parenting plan, before they’ll be allowed to see a judge. In some places, the mediator will make a report to the judge with a recommendation of how custody should be decided. In others, the mediator simply works with the parents, but doesn’t report to the court afterwards. Some courts may also order an evaluation of the family, which might be performed by a social worker employed by the county or by a private social worker or therapist with training in child custody evaluation. A child custody evaluation will include interviews with parents and the children, background checks, and sometimes psychological testing. Once all the mediation and evaluations are completed, you’ll then have your day in court. The judge isn’t compelled to follow the recommendations of the mediator or evaluator, but as a practical matter most do. If the social worker or mediator recommends that you get custody, you’ve won more than half the battle. If not, you’re at a serious disadvantage, but you can still proceed to the trial, and you may ask the social worker or mediator to come to court to be cross-examined about the report. This is especially important if the report contains factual inaccuracies. At the trial, the judge may ask your children where they want to live. Some judges ask only older children; other judges never ask any children. Most judges will pay little if any attention to the opinion of a child under seven, but will probably respect the wishes of a teenager if the chosen parent is otherwise suitable. Judges also tend to keep brothers and sisters together unless there is a strong reason not to. Keep in mind that a judge has the power to deny custody to both parents. During a divorce proceeding, a judge need not award custody of the children to either the mother or the father if he or she finds them unfit. Instead, the judge can award custody to a relative, a friend, or even the local juvenile court.

How to Create a Custody Agreement

Even though you may never want to speak to your former spouse or partner again, it is vital for you both to sit down and decide how you will continue to raise your children. Because the two of you know your children best, forming a parenting plan or custody agreement together makes the most sense. Also, it will save you from the risk of a drawn-out court battle. It is common for custody agreements to be much more detailed, covering when parents will spend time with the children, how to handle holidays, vacations, and birthdays, the role of each parent in the children’s education, health care and more. This agreement may serve as a placeholder while you work out the details of a more thorough one. While some parents can make agreements on their own without outside help, many turn to mediators or family law counselors to help them resolve one or more problem areas.

Negotiating a Custody Agreement

Negotiating a custody agreement that is fair to both you and your former spouse makes great sense. While it may seem impossible, try to put aside your anger and hostility to create a parenting plan that puts your children’s best interests first. Choose a setting that is neutral and prepare yourself by writing a list of all the important factors you want to discuss regarding the custody of your children. Obviously, this will include your children’s living arrangements, education, medical care, and emotional needs. Listen to all the requests your ex makes and be willing to compromise. If you strongly disagree on a particular issue, set it aside and concentrate on the things you can work out. Often, if a spirit of compromise develops over the course of your negotiations, it will extend to solving even your most difficult problems.

Some factors are common in the best interest analysis used by the individual states, including:

• Wishes of the child (if old enough to capably express a reasonable preference);

• Mental and physical health of the parents;

• Religion and/or cultural considerations;

• Need for continuation of stable home environment;

• Support and opportunity for interaction with members of extended family of either parent;

• Interaction and interrelationship with other members of household;

• Adjustment to school and community;

• Age and sex of child;

• Parental use of excessive discipline or emotional abuse; and

• Evidence of parental drug, alcohol or sex abuse.

Divorce Attorney In Utah Free Consultation

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We want to help you.