A parenting plan must be included in every decree of custody or decree of divorce in which the parties have minor children.

The required parenting plan must provide for the child’s physical care and emotional stability and his or her changing needs as the child grows and matures; it must designate the authority and responsibilities of each parent with respect to such issues as the child’s residence, education, health care and religious upbringing; it must minimize the child’s exposure to conflict between the parents, encourage resolution of parental conflicts outside the court system, and protect the best interests of the child.

Mediation is the ideal forum for developing a parenting plan that will address the particular needs of the divorcing parents and their children or for parents that are separating who never married. With the assistance of a trained mediator, the parties can control their own destiny and act in the best interests of their children.

The parenting plan should elicit cooperative decision making; timesharing with the child/children; and financial obligations. A dispute resolution process in the plan can provide continuity between the initial formulation of the parenting plan and the subsequent problems of implementation.

In mediation, parents will develop a plan that addresses the following necessary issues:

Chances are, if the parties can adequately address these issues in a cooperative environment, they will achieve a parenting plan that eases the pain that inevitably occurs with children of divorce, while at the same time fulfilling the legal requirements.

Custody

There are two types of custody, 1) legal custody and 2) physical custody. When considering custody, most parents generally think about physical custody. However, both types of custody must be addressed in a decree of divorce or a decree of custody/paternity.

Legal Custody
Legal custody refers to the rights, duties, powers, and privileges a parent has over their children, including a right to have access to a child’s medical and school records. This includes the right to make important decisions about the children.

Joint Legal Custody
Joint Legal Custody means both parents have all rights, duties, powers, and privileges over their children. The parents are also to work together to make major decisions for their child, such as major medical procedures, schools, religion, and permanent changes to a child’s appearance, etc. Nearly all divorcing parents have joint legal custody of their children.

Joint legal custody does not affect the children’s residence. It means that both parents have the powers discussed above. It is important that a parent remembers they should not be making unilateral decisions about these major issues. Rather, the parents should be working together to come to a consensus on these major decisions.

However, a decree should also include a resolution process if the parties cannot come to a consensus. Generally, the parties decree will have a provision that they must attend mediation prior to returning to court if they cannot reach an agreement on a major issue.

At times, the decree will grant one parent the right to make a final decision, after attending mediation, if they cannot reach a consensus, and the other parent may return to court if they believe the decision is not in the child’s best interest.

Physical Custody
In Utah, joint physical custody is when each of the parents have the children live at least 111 overnights a year in their home. Clearly, the parents need to live in the same general area to have joint physical custody. At times a parent may have the children during the day most of the time, but it is the overnights that are counted to determine joint custody. Thus, joint custody can be anywhere from 111 overnights for a parent up to 183 overnights per year.

When the parents have joint custody, child support is calculated on a sliding scale of the number of overnights. Thus, the amount of child support can vary greatly between a parent having 111 overnights compared to the amount if a parent has 183 overnights with the children.

Joint physical custody is preferred by the courts and other professionals who work with families during a divorce and any subsequent disputes over custody. It is more and more common for parents to have 50/50 parent time, which is the parents having 183 and 182 overnights per year.

Sole Physical Custody
In order for a parent to have sole physical custody they must have 256 or more overnights per year. The other parent has regularly scheduled parent time with the children, and they both make important decisions about their children (as decision making is a facet of legal custody, not physical custody).

Too often, a parent with sole physical custody begins to believe they have the right to make all decisions for their children without discussing and reaching a consensus with the other parent, but they do not have that right unless the decree gives it to them.

Generally, but not always (depending on the parents’ schedules), a parent that does not have physical custody of their children, will have parent time consisting of every other weekend from Friday evening until Sunday evening, with a 3-4 hour visit with the children on one week night each week (this is not an overnight visit, as the children are returned to the other parent at bedtime).

Split Custody
This arrangement means that each parent is awarded the sole physical custody of at least one of the children when there is more than one child. This type of custody arrangement is not common, as it is generally accepted to be in the children’s best interest to be together when they spend time at each parent’s home.

Determining Custody

When determining custody, the court must order what is in the children’s best interests. This is true even when the parties agree.

As stated, joint legal custody is assumed to be in the children’s best interests unless:

• One or more of the children have special needs,
• There is domestic violence, neglect, physical abuse, or emotional abuse involving one of the children, a parent or a household member of the parent, or
• There is some other factor the court considers relevant.

There is not a similar assumption about joint physical custody.

Under Utah Code 30-3-41, the state lists the factors to be considered when a court determines what is in the child’s best interests.

• Evidence of domestic violence, neglect, physical, sexual or emotional abuse involving the child, parent or a household member of the parent;
• Whether a parent intentionally exposed the child to pornography or other inappropriate sexual material;
• Whether custody and parent time would endanger the child’s health, physical; safety, or psychological safety;
• Evidence of psychological maltreatment;
• The relative benefit of keeping siblings together; and
• Any other factor the court finds relevant.

If a child is a teenager, many parents are of the mistaken assumption that the child can choose which parent they want to live with. That is not the case.

However, the court can consider the children’s desires, but these desires are not controlling. The court gives added weight to the desires of children who are at least 14 years old, but this is still only one factor the court considers.

The court is unlikely to order that a child can choose never to have contact with a parent that is not a documented danger to the child.

Further, the court does not and cannot do the following:

• Give either parent a preference due to the parent’s gender;
• Treat a parent who lawfully uses medical cannabis any differently than parents who lawfully use other prescribed drugs.
• Treat a parent unfairly because the parent agrees or disagrees with their child’s beliefs about gender identity.

Additional Factors the Court Considers in Determining Custody

• The parents’ ability to give first priority to the children’s welfare and reach shared decisions in the children’s best interest
• Co-parenting skills, including:
• Ability to appropriately communicate with the other parent; and
• Ability to encourage the sharing of love and affection;
• The distance between the parents’ homes;
• The parents’ maturity and their willingness and ability to protect the children from conflict that may arise between the parents, and
• The parents’ ability to cooperate with each other and make decisions jointly.

(See, generally utcourts.gov/en/self-help/case-categories/family/divorce/custody.html)