Under the Utah State Code, there is a rebuttable presumption that joint legal custody is in the best interest of the child. A presumption in favor of joint legal custody may be rebutted by establishing that it is not in the child’s best interests by a preponderance of the evidence.
If one or both parents have submitted a parenting plan in accordance with Section 30-3-10.8 and the court determines that joint legal custody or joint physical custody or both is in the best interests of the child, the court may order joint legal custody or joint physical custody or both.
When considering whether joint legal custody, joint physical custody, or both will be in the best interests of a child, the court shall take into account the custody factors set forth in Section 30-3-10 as well as the following considerations: UT Code § 30-3-10.2
- Whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;
- The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
- Co-parenting skills, including:
- ability to appropriately communicate with the other parent;
- ability to encourage the sharing of love and affection; and
- willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration;
- Whether both parents participated in raising the child before the divorce;
- The geographical proximity of the homes of the parents;
- The preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;
- The maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
- The past and present ability of the parents to cooperate with each other and make decisions jointly; and
- Any other factor the court finds relevant.
The determination of what is in the best interest of the child will be made on the basis of a preponderance of evidence.
Unless there is an emergency requiring ex parte orders to protect the child, the court may order that the parties attempt to resolve future disputes through a dispute resolution method before seeking enforcement or modification of the terms and conditions of an order of joint legal custody or joint physical custody through litigation.
Modification of Order
A parent seeking to modify sole custody to joint legal or physical custody or both, or to any other type of shared parenting arrangement, shall file and serve a proposed parenting plan along with the petition to modify.
After a hearing, the court may modify or terminate an order establishing joint legal custody or joint physical custody on the petition of one or both of the parents if:
- Admissible proof will be shown that the circumstances of the child, one or both parents, joint legal or physical custodians have materially and substantially changed after the entry of the modification order;
- Modification of the terms and conditions of the order would be an improvement for and in the best interest of the child;
- Both parents have complied in good faith with the dispute resolution procedure.
When determining whether it is in the best interest of a child to modify or terminate a joint legal custody or joint physical custody order, the court shall consider the factors outlined in Section 30-3-10 and Subsection 30-3-10.2, in addition to any other factors that the court considers relevant to the determination.