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August 18, 2021

How a Judge Decides Which Parent Will Be Awarded Child Custody

In Utah, mediation is a requirement in divorce and custody matters. The judge does not want to be the one to decide who should have custody of your children. She does not likely know you, your children, or your circumstances. It is ideal if parents can step back, look at what is best for their children and family, and sort out custody details on their own. Therefore, mediation is mandatory before a custody matter can go to trial. It is a great tool. However, custody matters still go to trial and judges are forced to ultimately decide the who, what, when, where of your children’s lives.

The courts are required to determine custody and parent-time based on what serves the best interests of the child. Even when parties are able to come to an agreement on custody and parent-time, the agreement must serve the best interests of the child or the courts will step in and make changes.

The Utah State Legislature provides the courts with a list of factors to consider, but the judge has discretion, which means that she can also consider anything else that might be relevant in your case. (For custody factors see Utah Code Ann. § 30-3-10) (For parent-time factors see Utah Code Ann. § 30-3-34). Of course, evidence of things like sexual abuse, physical abuse, and emotional abuse of the child, parent, or someone else in the household, will be a consideration in determining custody and parent-time. Custody factors include:
Stability. Consistency and stability are very important. The court will do its best not to disrupt the child’s life and lifestyle. Keeping children in their same school, neighborhood, near friends and community support systems could be beneficial.
Ability to co-parent. If things are going well with the child in the current circumstances, judges may not want to disrupt things. Consideration will be given to the parent who has the ability to abide by the parenting plan when making child custody decisions. Importantly, has one parent shown that they are more likely to encourage and facilitate a relationship between the child and their other parent? Something else considered, is whether a parent will be personally caring for the child versus requiring day care.

Mental and Physical well-being of the parent. Do either of the parents suffer from mental health or substance abuse issues? If so, the court may consider whether such condition will affect his or her ability to parent. If this element is an issue, an expert may be needed to provide an opinion. Untreated physical health problems can impact a parent’s ability to care for a child on their own.

Parent/Child Relationship. Which parent has been the primary caretaker of the child, and why? The court may pay close attention to the quality and depth of the relationship between the child and each parent. The court might also consider the religious compatibility of the child with each parent or even the child’s interaction and relationship with stepparents and other extended family members.

Siblings. The court will do what they can to keep siblings together. This goes back to maintaining stability. When parents wish to separate siblings in a custody agreement, they must present a strong case, clearly establishing why separating the children is in their best interests.

Many people believe that once their child is fourteen years old, they get to decide who they want to live with. This is not necessarily true. While the statute states that the court can ask a child what their desires are regarding custody and consider them, and even more weight is given to a child who is fourteen or older, neither party can require a child to testify. The court can inquire, but it is uncommon, and certainly frowned upon (at best) when one of the parties tries to use their child as a witness. The court will always make their determination based on what the judge feels is in the child’s best interest.

In Utah, mediation is a requirement in divorce and custody matters. The judge does not want to be the one


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