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!