“ The court shall, in every case, consider joint custody but may award any form of custody which is determined to be in the best interest of the child.”
Unless both parents agree to joint physical custody, trying to persuade courts in Utah to adopt a joint physical custody arrangement in divorce or parentage cases is, given the current climate, virtually impossible. But what is to be done when both parents are good parents, but one of the parents selfishly refuses to consider joint custody? Typically, the courts will respond to this kind of situation with reason such as, “Well, the parents can’t agree on joint physical custody, so thus joint physical doesn’t have a snowball’s chance of working, so I will have to award sole custody to one parent or the other.” Now I am not a father’s rights whacko, but 9.5 times out of 10, the parent who is awarded physical custody when there’s a custody dispute is . . . mom. So mothers, if you want sole custody even when you know your husband is a fine parent and could handle joint custody as well as you, if you claim joint custody can’t work, your odds of winning sole custody are so high as to be practically guaranteed.
What follows is the text of a temporary custody and parent-time award for an actual case of mine (used with my client’s permission, and names have been changed for privacy’s sake), with my and my client’s commentary on why the courts’ analysis of requests for joint physical custody are simply not getting the intellectual honesty and opportunity they deserve.
The text in italics contains the Father’s averments on the subject of child custody and parent-time that Respondent and his counsel wishes for the court to revisit and revise.
- Time that parents and child spend together should be at a level consistent with all parties' interests, i.e., the best interests of the family and all family members;
- Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:
- it is in the best interests of the child of divorcing parents to have frequent, meaningful, and continuing access to each parent following separation and divorce;
- it is in the best interests of the child to have both parents actively involved in parenting the child.
- each divorcing parent is entitled to and responsible for frequent, meaningful, and continuing access with his/her child consistent with the child’s best interests;