In every custody court order both Physical and Legal custody should be addressed. In Utah, physical custody is tracked by where the child spends the night. Overnights are what matter. If you care for a child from 7:00 AM to 10:00 PM EVERYDAY of the year but each night at 10:00 p.m. you send the child to the other party to sleep, then you had parent-time for the day but this parent-time does not mean what you have physical custody of child. In this example, the parent who has the child will the child sleeps would have SOLE physical custody of the child.
A designation of having Legal Custody over a child means that the party has the decision making power over aspects of the child’s life such as religion, education, medical treatment, extracurricular activities, etc.
Below are the 5 basic custody designations that a party could have. Each parent should have both a physical and legal custody designation:
1. The parent with primary physical custody must provide to the other parent (sometimes called the non-custodial parent) information concerning the health, education, welfare, religion, residence, and day care provision of the minor child(ren).
2. The parent with primary physical custody has the authority to make legal decisions about the child, but the information above must be communicated to the non-custodial parent. The non-custodial parent does not have decision making power, only the right to be informed.
1. The minor child(ren) resides with the custodial parent at 255 overnights of the year (365 overnights minus 110).
2. The other parent (the non-custodial parent) has at least standard minimum visitation, which roughly approximates 86 overnights per year:
* every other weekend,
* one weekday evening each week,
* 2 of the holidays in a year,
* four weeks during the child(ren)’s summer break (two weeks of that extended time may be interrupted by the other parent’s time).
1. Even a request for joint custody, either legal or physical, must be accompanied by a parent-plan. The Decree of Divorce or Paternity must state which parent makes legal decisions regarding each possible realm of legal custody issues. If both parties are to make all legal decisions regarding any issue, still present a list of the type of issues, such as medical care, educational, day care providers, religion, etc.
2. There is a “trick” in the Utah Code. If the Decree is not specific as to who is to make decisions and how, even when joint legal custody between the parties is ordered by the court, the parent who has the child(ren) the majority of the time, makes the default decisions legal custody issues.
3. The Decree must contain a provision that describes a process of how disputes over an issue are to be resolved. Litigation is permissible only after that dispute resolution option has been exercised by the parties and fails.
1. The parents share physical custody with each parent having the child(ren) at least 111 overnights each year. Utah is not quite that specific but at 111 overnights per year to each parent, child support begins to be calculated on the “joint custody worksheet” rather than the “sole custody worksheet” and child support for the parent with less time begins to drop. It drops more significantly after each parent has 130 overnights per year.
2. If the parties have joint physical custody, an award of joint legal custody is highly likely.
1. This type of custody is only used in the circumstance when there is more than one child in the family and the court determines that for some reason it is best for those children to live in separate households. One parent has sole custody over at least one child and the other parent has sole custody of at least one child. The court could award sole or joint legal custody to the parents over each child (see above).
It would seem like designations of physical and legal custody would be clear, easy, and few questions regarding it should remain. However, I have found that there is a continual new set of issues that arise because of relocation of parents, complexity arising from Grandparents Rights issues, and children who lead more and more sophisticated lives full of travel and activities. Some of my comments above are only my interpretation of the law as I’ve come to understand over these years of practicing family law in Utah. I look forward to comments, war stories, and examples of custody outcomes in Utah. Thank you!
My daughter is having an issue regarding the care of her daughter when she is at work. she has sole and physical custody. Her ex-husband interpretation of the preferred preference for child care is parent, stepparent, grand parent and then outside day care, that when my daughter is at work (evenings as a TSA officer) that their daughter should be with him instead of her step father. He works at night so sleeps during the day leaving his Mother to take care of her.
Neither of these people are very responsible. He’s sleeping and his mother plays games on the computer and sends her next door to play where we have discovered that the teenage boy there has been molesting her.
Shouldn’t my daughter as the parent with sole custody be able to dictate who watches her 8 year old daughter when she is at work? Even the daughter has expressed to us and him that she is burned out iyh being at his house so much.
Dealing with the biggest issue first. I hope that the molestation by the neighbor teenage has been reported to both the police and DCFS. All of us have an obligation BY LAW to report child abuse. As for the issue of providing care while she is at work, it really depends on a number of factors such as what EXACTLY do their court orders say about legal (not physical) custody? What exactly do their court orders say about providing day care? about the right of first refusal? Only taken as a whole can an attorney interpret what legal options your daughter has but certainly based on the molestation by the neighbor it seems that an attorney could address this situation and get some peace of mind for you and your daughter. You should consider a consultation with an attorney as soon as possible. Good luck!
What if the Decree awards both parties joint legal custody with one party being awarded the primary physical custody of the children? From the description above, it would seem that the term “primary physical custody” is used in reference to sole legal custody, not joint. Where, in the 5 types of custody mentioned above, would this fall under?
This is a very interesting question. While I cannot give you legal advice in a public forum, I can say that the definitions are actually not very meaningful without knowing the full content of your court order, such as the parenting time schedule and all of the language surround child related issues. If this is all your decree says, it leads to one interpretation, if there is more language but it is too lengthy for a blog comment or if you don’t know the real meaning of the language that is in the document, it could mean something else entirely. Vague decrees lead to vague understanding and a general free-for-all in application. As I would recommend to anyone with specific questions about their specific case, it is really best to invest in a consultation with an attorney and show that attorney any court orders you have. The devil is in the details.
I have primary physical custody and joint legal custody with my ex husband. Can he check them out of school without communicating with me about it? Do I have sole custody if I have Primary Physical custody?
You should add a retweet button to your blog. I just bookmarked this post, however I had to complete it manually. Simply my $.02 🙂
@al: Thanks for leaving a comment.
Most of the attorneys in St. George who advertise for Family Law Services are firms that are general litigation firms (meaning, they do a broad range of litigation). We do not have specific information that would tell us who the best divorce attorney in St. George is. But, you inspired us to write a blog entry about how to look for an attorney!
The attorneys of Long Okura P.C. do travel for cases and have done divorces all over the State of Utah. However, there is some additional expense for travel to attend court and mediation in St. George.
how is the top divorce attorney in st george ut.