This is the first in a five part series regarding frequently asked questions (FAQs) that family law attorneys hear all of the time. In any situation, there are many variables and facts that impact the advice you get from a lawyer, so never rely on statute provisions alone and certainly do not rely on blog entries! However, we want to help point people in the right direction by providing some references to Utah Code provisions that may be helpful regarding questions that arise often.
FAQ 1: When does my child get to choose which parent he or she will live with?
This is one of those questions that you eventually come to dread when you practice family law in Utah and it has always been surprising to hear what people have been told or believe is the law on this issue.
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 16 years of age or older shall be given added weight, but is not the single controlling factor.
The code also speaks about the children should not be called into court without extreme circumstances. It is our experience that the court is very loathe to have direct communication with children, for many good reasons. It is unlikely that the child will speak directly with the court.
In practice, a trained custody evaluator or parent-time evaluator is assigned to the case to have discussions with the child. Those professionals are also not likely to ask direct questions of child as to the child’s preference of residence and/or parent-time as this puts pressure on children to “pick” one parent over the other. The expert custody or parent-time evaluator will then make a recommendation to the court based on the totality of all that they have seen in regard to the family and the child. Any expressed desire to reside in one home or the other is just one of many factors and often is not revealed to the parents or the court. The professional evaluator is making a recommendation as to the evaluator’s opinion of the situation that is best for the child.
It is likely that Utah legistlators have created this statute because of recommendations made by child mental health providers who expressed that is not good for children to make them articulate a preference of custody and/or parent-time. When the child’s preference is given great weight, this puts control in the child’s hands which then causes the parents to pressure the child (consciously or unconsciously) and to embroil the child in the dispute. Therefore, in order to protect the child, the Utah legislature does not give the child’s express opinion about these matters much weight, though the older the child is, the more weight his or her opinion may have.
In short, in Utah, there is no age at which the child’s express stated preference for custody or parent-time is the controlling factor in an award of custody or parent-time.