James R. Balmforth: Child’s Decision With Which Parents To Live

Is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person’s care? Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child. Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In most jurisdictions child custody is determined in accordance with the best interests of the child standard.

LEGAL CUSTODY

Legal custody involves the division of rights between the parents to make important life decisions relating to their minor children. Such decisions may include choice of a child’s school, physician, medical treatments, orthodontic treatment, counseling, psychotherapy and religion.

Legal custody may be joint, in which case both parents share decision-making rights, or sole, in which case one parent has the rights to make key decisions without regard to the wishes of the other parent.

PHYSICAL CUSTODY

Physical custody establishes where a child lives and who decides day-to-day issues regarding the child. If a parent has physical custody of a child, that parent’s home will normally be the child’s legal residence (domicile). The times during which parents provide lodging and care for the child is defined by a court-ordered custody parenting schedule, also known as a parenting plan.

Can a Child Decide?

In some states, children above a certain age are allowed to determine for themselves which parent they would prefer to live with. But a preference isn’t the final word and it doesn’t give the child the actual decision. Child custody laws in Utah allow judges to ask children’s preferences with any children who seem old enough to make a reasonable decision. Children age 16 and older are given “considerable weight” in determining which parent they will live with, but no child’s decision is final. In all cases, the judge will use the child’s wishes as a factor in awarding child custody, but not the sole determinant. A law is currently being proposed in Utah that would give children as young as 14 the right to decide where they live, but it has not yet been passed. Keep an eye on recent political news developments to make sure you understand the current status of the law.

Overview of Custody Decisions in Utah

Utah courts decide child custody whenever parents can’t come to an agreement on their own. Judges must consider a number of factors when making custody decisions, including each of the following:
• the parents’ past conduct and moral standards
• which parent is most likely to act in the child’s best interests, including allowing the child frequent contact with the other parent
• the child’s relationship with each parent
• either parent’s history of domestic violence
• the child’s special needs, if any
• the distance between the parents’ residences
• the child’s preference, if the child is old enough, and
• Any other factor the court deems relevant to custody.
To read more information about custody decisions in Utah, see Child Custody in Utah: The Best Interests of the Child.
Best Interest of the Child
Utah family courts, like those in most states, determine child custody matters using the “best interests of the child.” The factors considered by the judge include:
• Past conduct and demonstrated moral standards of the parties
• Parent most likely to act in the best interest of the child, including allowing child frequent contact with non-custodial parent
• Bonding between each parent and the child
• If a parent has intentionally exposed the child to pornography or other harmful sexual-related materials
• Physical, psychological, and emotional needs of the child
• Both parent’s ability to reach shared decisions for the child and prioritize the child’s welfare
• If both parents participated in raising the child before the divorce
• The geographic proximity of the parents’ homes
• The child’s preferences
• Parents ability to protect child from their conflict
• Past and present ability to cooperate with each other in parenting and making decisions
• Any history of child abuse, domestic violence, or kidnapping
• Any other relevant factors
When parents can’t develop their own parenting schedule, the court can establish an appropriate schedule more or less than the statutory minimum parent-time based on the following best interest of the child factors:
• How parent-time would negative impact child’s physical health and emotional development
• Distance between child’s home and the non-custodial parent’s home
• Allegations of child abuse
• Lack of demonstrated parenting skills when there’s no safeguards to ensure child’s safety
• Financial inability of non-custodial parent to provide food and shelter during parent-time
• Child’s preference, if sufficiently mature
• Parent’s incarceration
• Shared interests of the child and non-custodial parent
• Non-custodial parent’s involvement in the child’s school, community, religious, or other related activities
• Non-custodial parent’s availability to care for the child when the custodial parent is working or has other obligations
• Chronic pattern of missing, canceling or denying regularly scheduled parenting time

• Parent-time schedule of siblings
• Lack of reasonable alternatives for nursing child
• Any other criteria the court feels is relevant to the best interests of the child

Joint Child Custody in Utah

A court in Utah will always consider joint physical or legal custody if both parties have completed a parenting plan and if joint custody serves the best interests of the child. In reaching a determination for joint custody, the court will consider the following factors:
• The geographical proximity between the parents
• Each parent’s ability to place the needs of the child first in reaching appropriate decisions
• Whether both parents have always participated in the child’s upbringing
• The child’s wishes, if the child is of an age to express a reasonable preference (generally age 12 or older)
• Any history of child abuse, spousal abuse or kidnapping
• Each parent’s maturity and ability to avoid conflict for the sake of the child
• The parents’ ability to cooperate with one another
• Any other factors deemed relevant by the court

Modification of Child Custody in Utah

Upon request by one parent, a Utah family court may modify or terminate a custody arrangement if:
• A modification will positively affect the best interests of the child
• There has been a material and substantial change of circumstances in the child or one of the parents’ lives
• Both parents have complied with the dispute resolution process, prior to taking the case to a court hearing
For more information about child custody in Utah, speak with a qualified attorney in Utah or refer to the Utah Code.

When Will the Court Consider a Child’s Preference?

Whether a Utah court will consider a child’s preference when deciding custody depends on the child’s age and maturity. Judges will give more weight to older children’s preferences (14 and older), and disregard the opinion of children under ten. Children between ten and 14 can have limited input on custody decisions. In one case, an 11-year old boy stated a preference to live with his father, but the judge specifically stated that an 11-year old shouldn’t have control over where he lives.

Judges will also look at the reasons a child prefers to live with one parent over the other. In one case, a father with custody of two boys moved them from their hometown and away from their school, friends, and other family members. The children wanted to live with their mother to be close to friends and family, and to continue going to the school they knew. The court found that these were valid reasons to want to live with their mother and gave the children’s preferences significant weight in the custody decision. On the other hand, if a child’s reasons for wanting to live one parent are immature, for example, because one parent is more lax with discipline or gives them lavish gifts, the judge won’t give the child’s preference much weight.

Even if a child has a strong custodial preference, it won’t be the controlling factor in a court’s decision. A judge can always overrule a child’s preference if it’s in the child’s best interest to live with the non-preferred parent.

Judges will also watch to see if parents have coached their children. In one case, a judge questioned the children and discovered that their mother had told them to lie about her boyfriend’s overnight visits in their home. The mother’s coaching was a major factor in the judge’s decision to transfer custody to the father.

There is specific language in Utah divorce law regarding when a court will give added weight to a child’s preference about where to live and what type of time to spend with each parent.

The language is found in Utah Code, section 30-3-10(1) (e):

The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

So, there is a line at fourteen where a judge will give a kid’s opinion added weight, but it will never be the single controlling factor in the judge’s decision.

Of course, all this assumes the judge even considers a child’s preference. Like it says in the law, the judge doesn’t have to (“[t]he court may inquire”).

Do Children Have to Testify About Their Custodial Preferences in Court?
In Utah, children can’t testify in court unless there are extenuating circumstances, and there’s no other way to obtain their testimony. Instead, judges usually interview children in court chambers to determine their custodial preferences. Normally, the court will ask the parents for permission to interview a child, but parental consent isn’t necessary if the judge decides that an interview is the only way to figure out the child’s custodial desires.

Parents can’t attend the in-chambers interview. The judge may or may not allow the parent’s attorneys to be present. Often, a court reporter will record the interview.

Courts can determine a child’s preference in other ways as well. In one case, the judge deciding custody considered letters written by two boys to their mom, stating that they wanted to live with her. Courts may also allow custody evaluators or mental health professionals to testify about what children have told them regarding their custodial preferences.

If you have additional questions about the effect of children’s custodial preferences, contact a Utah family law attorney for help.

When a kid turns sixteen, he or she pretty much chooses where to live.
At that age, kids have cars, they have friends, and they don’t like being told what to do. All of that ads up to freedom, and with that freedom comes the de facto freedom to choose with which parent they want to spend their time.

Is there a Bottom Line to the Question: At What Age Can a Child Decide Which Parent to Live with in Utah?

If there’s a bottom line, it might be something like this: if a judge takes in to account a child’s preference about custody, it probably won’t be before that child is fourteen, unless there’s a guardian ad litem on the case; but, when the child hits sixteen, the child’s going to choose where to live, no matter what the judge says.

Utah Code § 30-3-10(1)(e)

This statute states that the child’s desires regarding a custody award may be taken into consideration by the court, but the child’s desire is not controlling.

If there is a current order, the child must follow it. The parent will be held in contempt if the child does not follow it.

Please note, there is a common argument that if a child over the age of 14 doesn’t want to exercise parent-time with “Parent A,” Parent B can’t be forced to move the child. It’s arguable that the child is too big or strong to force him or her to the other parent. This argument is inadequate. If that child wished to go to a friend’s house for drugs, most parents would find ways to stop it (whether as small as “grounding” the child, restricting privileges, or taking a cell phones, to the extremes of calling the police). The court expects each parent to take parent-time just as seriously.

For custody battles, the age of 14 is mentioned as the age at which a child’s desires may be given added weight, but even then, the child’s desires are not the controlling factor. The court takes many other factors into consideration, always with the best interests of the child in mind. These additional factors for consideration can be found in Utah Code §§ 30-3-10(1) (a) and U.C.A. 30-3-10.2.

Interestingly, a child’s preference at any age can be considered by the court, assuming the child is at a sufficient age to legitimately have a preference (i.e., a three-year-old’s “preference” is never considered, but a 12-year-old’s preference would be).

Just as a 14-year-old’s preference is explicitly given “added” weight, a 17-year-old’s preference would be given even more weight. The older a child gets, the more weight his/her preferences have. These preferences are never the sole factor (and never a reason to modify a custody arrangement alone).

Child Custody Attorney Free Consultation

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.