Parentage a.k.a. Custody

A parentage relationship is established when you are the parent of a child whether biological or by a Court (i.e., adoption).  You only have a parentage relationship when the relationship is legal.  In other words, if the child is a result of a non-consensual relationship (i.e., rape) then the one forcing the relationship will not generally have any legal rights to the child. 

Custody generally refers to the control over decisions made for the child and/or the place where the child lives, if the parents do not live in the same household.  However, both parents have equal custodial rights until a Court order exists which establishes custody. 

Some of the most frequently asked questions about parentage follow:

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Although generally you decide when to become a parent, you do not get to decide when you no longer want to be a parent.  You have to get permission from a Court to end your parentage relationship.  In order to do this, you will have to show that the child will be taken care of (such as being adopted by someone else).

In addition, you will have to get permission from a Court if you want to end the parentage relationship of the other parent.  Again, in order to be successful, you will need to show the Court that the child will be taken care of or that the relationship between the parent and child would be so detrimental to the child that it should be terminated.

In a marriage relationship, the issue of custody will be decided as part of the divorce.  Without a marriage relationship, the issue of custody may be brought before the Court as a parentage action.  The deciding factor in determining custody is the question, “What is in the best interests of the children?”  If you may agree on what the best interests of the child are, then you and your children will be better off.  However, especially in abusive relationships, agreement may not be made.  In this case, the issue will be decided by a Court.  The courts look at many things to determine the best interests of the child but it is mainly determined by an examination of which parent has been the children’s primary caretaker.

The court will look at many factors to decide who was the primary caretaker, such as:  who gets the child up in the morning; who feeds the child breakfast; who gets the child dressed; who gets the child ready for school; who takes the child to school; who picks the child up from school; who helps the child with homework; who watches the child play with friends; who prepares and eats meals with the child; who reads to the child; who gets the child ready for bed; who makes decisions on medical care; who participates in activities with the child...and many other factors.

Note:  Stepparents are not responsible nor do they generally have any rights for their stepchildren following a divorce, unless they have formally adopted those children.

When the facts to determine custody are unclear, the court will at times order a custody evaluation to be performed to help determine the best interests of the child.  A custody evaluation is very expensive and the cost is often split between the parties, though at times the court will make other orders to deal with a disparity in incomes.  If a custody evaluation is ordered, you should cooperate fully with the evaluator, as the evaluator’s decision will likely be adopted by the Judge in the case.

There are 2 different kinds of custody which may be shared in 3 main ways.  The two types of custody are:

      1. Legal custody which goes to who has the ability to make important decisions concerning the children, and
      2. Physical custody which goes to where the children will live.

As mentioned, each of the two types of custody may be shared in 3 different ways.  This may be done differently for each type of custody:

          • Sole.  Legal and/or physical custody may be given to one parent alone (with rights of visitation to the other).
          • Joint.  In joint custody arrangements, both parents are involved.  For instance, with joint legal custody, both parents would have a right to make the important decisions regarding the children such as education, religion and non-emergency medical care. This type of arrangement will only work where the parties get along very well and may communicate with each other often.  Joint physical custody would entail moving the kids from one parent to the other for some amount of time as decided between the parties or the judge.  However, the children must spend more than 110 nights each year in each home to call the arrangement “joint”.
          • Split.  This situation involves more than one child and the children are split between the parents.  For example, one will live with the mother and one will live with the father.  This type of arrangement is advised only in rare circumstances, as it is rare that this would be in the children’s best interests.

It is best to have a visitation schedule that both parents agree to, and one that works best with their schedules. If this cannot be done, Utah has implemented a minimum visitation guideline which will be applied in almost every case, unless there is a very good reason not to use it. In general, this schedule includes one weekday evening and alternating weekends and holidays. The visitation for children under the age of five is different, generally more frequent shorter visits.

Again, the answer to this will depend on your circumstances.  Generally, however, both parents will have to do their part to provide for the child’s needs.  As a result, courts will often expect you to work and/or get trained to work.

Both parents will generally share equally the reasonable child care expenses for the child. Usually, the parent incurring day care expenses will provide written verification of the cost and identity of a child care provider to the other parent when the day care provider is hired and upon the request of the other parent at any time after that. The parent incurring day care expenses must notify the other parent of any changes within 30 days. If the parent incurring day care expenses fails to provide original notice as stated above, the court may determine that the other parent is not obligated to pay.

If medical insurance is reasonably available to a parent, that parent should maintain insurance for medical expenses for the benefit of any minor children. For medical expense not covered by insurance, again both parents will share the expenses equally. The information about medical expenses should happen in writing within 30 days.

Without an order specifying otherwise, the parent with whom the child lives (if a sole custody arrangement) gets to claim the child as a dependent for income tax purposes.  However, this is generally modified.  Again, it should be modified in a way that best fits your circumstances and most would say in a way that results in the least amount of tax being paid by both parents together to the government.  Some different options are:

          • Alternating each year.  For instance, one parent will take the deduction in odd years, the other will take it in even years.
          • Having the same parent always take the deduction.  This may work in two ways: 1)  if one parent does not work, the working parent should take the deduction each year, or 2) if there is more than one child, the deduction may be split between the parents.  Note: a noncustodial parent may claim the exemption only if that noncustodial parent is actually paying child support in the amount ordered by the court and the custodial parent must sign a form for the IRS allowing the noncustodial parent to take the deduction.
          • You may also include a “buy-out” clause, which allows one parent to pay to the other parent what the other parent would get if that other parent were to take the deduction.

After the divorce, many parents are uncertain how much contact to allow between their children and their ex-spouse’s extended family. Even though you are divorcing, your children will still be related to your ex-spouse’s extended family by blood. Your guide should always be the best interest of your children. If your children have a bond with the extended family members, then continued contact is probably in your children’s best interest. Whatever you choose to do, the judge has authority to order continued contact that is in a child’s best interest. In addition, there is a special statute that allows grandparents to petition the court for visitation of grandchildren if it is being denied.

Although the answer is technically yes, if both parents do not agree, the chance of getting a court to change the child’s name is small but depends upon the circumstances.  There are very specific criteria the courts look at in addition to what is in the best interest of the child.

Yes.  The Utah Courts have put the forms on their Online Court Assistance Program (OCAP) located at www.utcourts.gov/ocap.  After having you input all the needed information, this program will personalize and prepare all the paperwork needed to file a divorce.

If you disagree with the judge’s order on one or more issues, you have the right to appeal. This means having a higher court review your case. You must file your appeal within 30 days of the final entry of the custody order. Appealing a case is a complex and technical process and you should consider hiring an attorney to help you.

Once the court enters an order, it may be modified only if the parties may show that there has been a substantial and material change in circumstances since the divorce was entered. For example this might mean a large change in one party’s income, or the fact that one party moves from the state. Once the court finds that there is a substantial and material change in circumstances, then it needs to determine what the order should be. When reviewing a custody or visitation order, the court will always base its decision on the best interest of the children. In the event of a substantial change, a petition is filed with the court asking that the decree be modified.

No.  Unless there is a specific order from the Court that says otherwise, child support and visitation are separate.  You may not deny visitation just because child support has not been paid.  Alternatively, the opposite is also true.  Just because someone pays child support does not mean they are going to get visitation.   

Visitation should only be denied if there is some danger to the child if the visitation takes place.  If there is some fear of abuse or neglect, you may request supervised visitation and specify who will be present during visitation. Again, however, the courts do not like to restrict visitation so parties must provide a very good reason.

There are many different ways to help your child.  The Divorce Education Class for Parents is a great place to get some ideas on the effects this will have on your child and what you may do to help.  Below are some tips

          • Put your child’s welfare first. Never use your child as a weapon against your spouse or ex-spouse. This harms your child, and if the judge finds out, it could also harm your case.
          • Be sure your child has ample time with the other parent. They need it.
          • Visitation with the other parent should usually NOT take place in your home.
          • Don’t take your child to your lawyer’s office, to court, or any other place where you must discuss the terms of the custody arrangement.
          • Be flexible with the visitation schedule, but do your best to be on time for visitation, and give plenty of notice if you may not be on time.
          • Don’t use your child to spy on the other parent.
          • Don’t ask for reports about the other parent from the child. 
          • Don’t listen in on phone calls with the other parent. 
          • Assure your child that s/he is not to blame for the breakup and are not being rejected or abandoned by either parent.
          • Do not speak badly about the other parent in front of the child or anywhere the child will overhear.

The answer to this depends on the number of children you have and the amount of income that you and the other parent has. However, there is very little to fight about when it comes to child support. Utah has adopted statutory child support guidelines. Both parties must supply evidence of their gross monthly income to the court, and complete the appropriate child support worksheet. At the end, the work sheet will give you the amount of child support that should be paid.  There are different worksheets for sole custody, joint custody, and split custody. The process is somewhat similar to doing your income taxes.  link to child support worksheet  link to child support forms

No.  Child support is not yours; it is your child’s.  Even if you and the other parent agree to no child support (or even just child support which is less than the statute requires), the Judge will generally not reduce it unless there are very good reasons.   In fact, even is someone is unemployed, the court will often impute income to that person.   For example if a party was making $15 an hour and left his or her job, then the court will probably impute an income of $15 per hour for 40 hours per week to that person.

Violation of a parentage, custody or divorce order is considered to be “contempt” because the other party is not following an order of the Court.  To enforce the provisions, you must file an “Order to Show Cause” asking the court to find that the party not complying.  In enforcing the order, the court may fine or otherwise penalize the party not following the order. If the noncomplying party has failed to pay money, a judgment may be entered against that party. The judgment must be collected by the other party through garnishment or attachment and sale of nonexempt property owned by the noncomplying party.  Contempt may also result in the noncomplying party being sent to jail. The order is a civil order of contempt and does not go on a person’s criminal record.  The paperwork needed to enforce an order may be obtained through the Utah Courts.  They have put the forms on their Online Court Assistance Program (OCAP) (www.utcourts.gov/ocap).  After having you input all the needed information, this program will personalize and prepare all the paperwork needed to file an action in contempt.

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