When Do Judges Grant Sole Custody in Utah Custody Cases?

In most Utah divorce cases, family courts try to grant joint custody (shared custody).  However, there are some situations where joint custody is simply not appropriate.  In these cases, the judge will grant sole custody to one parent.  In this article, divorce lawyer Darwin Overson will explain some common situations where a judge might decide to deny joint custody.

Legal Custody vs. Physical Custody in Utah

The difference between joint custody and sole custody is fairly straightforward: the former involves both parents sharing child custody on a roughly equal basis, while the latter involves making one parent alone the custodial parent.  However, what many people don’t initially realize is that there is also a distinction between legal custody and physical custody, which can be mixed and matched with regard to sole versus joint arrangements.

Physical custody refers to where the child will live.  Under Utah Code § 30-3-10.1, joint physical custody “means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support.”  It can, but does not always, mean that “equal or nearly equal periods of physical custody of and access to the child by each of the parents.”  In sole physical custody, one parent has the child for just one-third of the year, or even less.

Legal custody is more complex, because it involves every aspect of custody which is not covered by physical custody.  That includes, but is not limited to, matters like marriage, schooling, healthcare, military service, religious upbringing, and even tattoos and piercings.

In joint legal custody, these “rights, privileges, duties, and powers” are shared by both parents (with some narrow exceptions where “exclusive authority” is granted for “specific decisions”).  In sole legal custody, one parent has the decision-making authority – at least until his or her child turns 18 years old and legally becomes an adult.

sad little girl child custody battle

Reasons Parents Are Denied Joint Custody in Divorce

As noted above, the courts generally lean toward joint custody where practicable in the child’s best interests.  The importance of serving the child’s best interests cannot be emphasized strongly enough.  The child’s best interests – not the parents’ desires – is the guiding star all judges use when determining the most appropriate custody arrangement.  The judge will not enter a judgment for a custody plan which would be detrimental to the child’s health, safety, education, or other aspects of the child’s life.

With that in mind, some common reasons to grant sole custody include the following:

  • The child is afraid of or uncomfortable with one of the parents.  This usually involves a factor which could lead to designation as an “unfit parent,” which brings us to our next point below.
  • One parent alleges the other parent is “unfit” due to factors like:
    • A distant or disinterested attitude toward child-rearing (e.g. neglecting the child, failing to participate in the child’s school life, relying on the other parent to handle parental responsibilities).
    • Substance abuse and/or alcoholism.
    • Severe mental illness or a debilitating physical condition which renders the parent unable to provide adequate care.
    • A history of domestic violence or child abuse.  Parents should be advised that if child abuse or child sexual abuse is alleged, the court can order an investigation by the Division of Child and Family Services (which is part of the Department of Human Services).  This is provided by Utah Code § 30-3-5.2.
  • One of the parents plans to move hundreds or thousands of miles away, and bringing the child would separate him or her from their home, siblings/relatives, and/or school community.  Custody is meant to provide maximum stability for the child.
  • The parent has a criminal record.
    • It is not necessarily impossible for parents who have criminal records to prevail in custody disputes, though it does make the situation more complicated.  It all depends on the circumstances of the crime and subsequent conviction.  For example, a judge might be open to granting custody to someone who committed a nonviolent misdemeanor many years ago and has avoided getting arrested ever since.  If the offense was recent and involved a violent felony, child kidnapping, or a sex crime, the judge will be far less disposed toward considering that parent for custody.

If you need help resolving a custody dispute in Utah, call family law attorney Darwin Overson at (801) 758-2287 to set up a free and confidential legal consultation.  Our lines are always open, and you will not be charged with any fees for your consultation.  Darwin also helps parents and families with related legal matters in Utah, including alimony and adoption