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How to Change Custody

 

If you have children and are getting a divorce, you will have to provide  a parenting  plan. Legal custody and physical custody will be awarded to you, to your ex-spouse, or to both of you jointly.. If you feel later on that the custody arrangement is flawed, is not working, and meet the requirements mentioned below,, you may consider filing  a “petition to modify”. This pleading begins a process of responses, settlement discussions, and possibly trial.  The  outcome will require consideration of the following:

  1. Material and substantial changes in circumstances.

If there has been a material and substantial change in the life of either the child or one or both of the parents, then a court may so find.. These changes can range from a new job, religious change, one of the parents getting remarried, or a drastic change in health on either the part of the child or the parent. Also, when a child is 14 years old in Utah, the court will give added weight to the preference of that child.  However, just because one or more material and substantial  changes in circumstances have been made, there is no obligation on the court to change the custody arrangement.

  1. The best interests of the child.

If a party can prove that a substantial change in the life of the child has taken place, then a court will decide if the proposed change will be in the child’s best interests.  But “best interests” can be somewhat subjective.  It is not unusual for both parents to claim the best interests of the child or children can only be with the parent asserting it.  

If you are able to show there has been a substantial and material (i.e., “important”) change in circumstances, and that the proposed parenting plan  is in the child’s best interest,  the court will be more likely  to modify.

For all your needs and questions regarding divorce, parentage, custody, and other family law issues, contact the Huntsman Firm.

How to Protect Yourself When Leaving an Abusive Marriage

If you are caught in a violent relationship, your first priority should be to get yourself and your children to safety. To be safe from harm, you need to find housing somewhere the abuser can’t find you, whether it’s a women’s shelter, a hotel or the home of a friend the abuser doesn’t know. Never go to your parents’ house or to stay with a close friend, because he can find you there. The majority of battered spouses or partners are women, but if you are a battered man, the same advice applies to you.

Plan for Safety

Sometimes you have time to plan and you can put aside cash, preferably somewhere other than your house. Leave clothes and other important items with a friend in case you need to leave the house quickly. Document every incident of physical or emotional abuse in your household, whether it involves you or your kids. The National Coalition Against Domestic Violence recommends that you make a list of safe people to contact, memorize phone numbers of people or places to call for help, keep change and cash with you at all times and establish a code word to alert others for help without alerting the abuser.

You should also take important papers with you, such as your credit cards and checkbook, social security cards, birth certificates, copies of deeds, proof of income, copies of bank or credit card statements and any documentation that proves past abuse.

Additional Suggestions from the NCADV

  • If you’re staying in your home, have the locks changed
  • Don’t stay alone
  • Change your routine frequently
  • Think about how you’ll get away if confronted by the abuser
  • Meet the abuser in a public place
  • Contact people you trust at your workplace and your children’s school so they are alert to anything unusual

Child Custody

If you share legal custody of your children with an abusive spouse or partner, you need to make arrangement for neutral pickup sites or for others to pick up and drop off your kids. If you have sole custody of your children, but the judge has ordered some type of visitation rights, ask for conditions to be placed on that right. Consider a restraining order if you don’t think it’s safe to be in the same place as your spouse, and in extreme cases, ask the court to appoint a visitation supervision monitor.

Modifying Your Child Custody Agreement

In the United States, there are two parts to custody: physical and legal. Physical custody refers to where the children physically live and legal custody refers to the parent having the right to make important decisions about the child. Unless there is violence in the family, the child has special needs, the parents live far apart or there is another extenuating circumstance relevant, joint custody is presumed to be in the best interest of the child. A child custody agreement is legally binding and demands that both parents share the child according to the terms of that agreement.

However, there are cases when someone might want to modify child custody in the best interest of the child’s safety and well-being. The court will typically only change a custody agreement if something dramatically different is happening with one parent, referred to as a “material change in circumstances.” Material changes include a long-distance move, change in living conditions, change in the environment or a change in the parent’s ability to provide a decent home and good care for the child.

A specific example of a material change that would warrant custody modification: The primary parent was completely fit to provide care during the time of the original agreement, but has since developed an addiction to drugs or alcohol which inhibits them from caring for the child properly.

Modification Time Frame

The court usually considers it best for children to have consistency, and for this reason, most will not make a change within a certain time frame of the creation of the original agreement. The waiting period will vary by each state, but one to two years is most common. Of course, if a child is in imminent danger the process will be sped up so they can be safely relocated to a responsible caregiver.

Essential Questions for Modification

General factors to question:

  • Parents’ conduct and moral standards
  • Which parent is more likely to act in the child’s best interest
  • Which parent will allow the child frequent, continuing contact with the other
  • The depth, quality and overall nature of the parent-child relationship

More specific questions:

  • Will joint legal custody or joint physical custody be better for the child’s physical, psychological and emotional needs?
  • Which parent has the better ability to give first priority to the child’s welfare?
  • Are the parents able to reach shared decisions in the child’s best interest?
  • Can both parents encourage and accept a positive relationship between the child and other parent?
  • What is the distance between the parents’ homes?
  • What are the child’s preferences?
  • Are the parents mature and willing enough to protect the child from their own conflict?
  • Can parents cooperate with each other and make joint decisions?
  • Is there any history or future potential of child abuse, spousal abuse or kidnapping?

Custody Settlements for a Special Needs Child

Raising a child with special needs requires patience, love and of course, money. While raising children in 2016 is expensive by default (approximately $245,340 from birth until age 18} the cost of raising a special needs child can often quadruple those expenses. Doctors’ visits, hospitalization, medical equipment, therapy, special education, medications, caregivers– these costs add up to hundreds of thousands, and sometimes millions, of dollars. This financial stress often puts serious strain on a marriage and as a result, parents of special needs children have a higher divorce rate than the overall population.

Divorce is already a complicated situation when there are children involved. Adding a special needs child into the mix creates an even more delicate situation. Custody decisions must be made completely based upon what is best for the child, and there are various factors you should consider when faced with this choice.

Come to an agreement regarding the child’s needs

Parents often disagree about how to raise children and address their needs. With a special needs child, it is even more essential to come to an agreement quickly. Determine where the areas of disagreement are in order to properly address the future needs and care of the child as part of the divorce case.

Determine if the special needs child will require support after age 18

The severity of disabilities can vary greatly. When a case is extreme, there is no debate whether or not the child will need continuing support as an adult. Child support will be continued indefinitely in this case. However, you cannot always determine whether the child needs support beyond high school. If the court does not recognize the need for permanent support then the burden will be on the primary caregiver. When an adult disabled child needs support beyond the lives of their parents it increases expenses and creates unique challenges.

Create a parenting plan

Whichever party receives full custody is going to know more about the child’s disability. If you are sharing custody, it is vital to educate your ex-spouse on the daily care of your child. You need to spell out all the essential information: managing behaviors, monitoring food, adapting physical surroundings, medication schedules or the preferences of a nonverbal child.

Educate yourself on public benefits planning

Your child might be eligible for Supplemental Security Income (cash benefits for individuals with disabilities) so alimony and child support must be organized within your child’s benefit eligibility. A family law attorney will work with a special needs attorney and an experienced financial adviser to make sure you receive all of your child’s monetary entitlements. Child support payments can affect government benefit programs like SSI and Medicaid, so it’s critical to address these issues during the divorce process.

Additional Questions

There are several other questions you and your ex-spouse need to address when handling the custody of your special needs child. These questions include:

  • With whom will the child live?
  • How much contact will the non-primary parent have?
  • Does the school district where the child attends have a residency requirement?
  • Can the child make smooth or frequent transitions between houses?
  • Does the child have access to the other parent at all times?
  • Can the child be away from home/the primary parent for extended periods of time?
  • If there is more than one child in the household, how will parenting time be split up?
  • Who will pay child support and in what amount?

Deciding Who Gets Custody of Pets in a Divorce

When you think of custody in a divorce, it’s likely that children come to mind immediately, but what about pets? Nowadays, most people consider cats and dogs to be family members, rather than just another asset to divide up. We all love and care about our animals and don’t want to be without them, so how do we deal with custody? Since there is no actual law about pet custody in a divorce, this can be tricky, and the issue of pet custody can often cause almost as much drama and distress as custody of children.

Tips from Our Legal Experts

If you’re going through a divorce and you’re worried about losing custody of your furry loved one, here are a few realistic questions you should ask in order to make a wise decision:

Who is living in the family house?

If one of you is going to stay in the house your pet is used to, that might be a sign that they should have prominent custody. Pets, especially dogs, need space to run around and play. If one of you is moving to a small apartment, it is smarter and healthier for the dog to stay in a house with a backyard and space to be active.

Who spends the most time with the pets?

Consider who it is that takes the pet to the vet, who buys food and supplies, who takes the dog on a walk and who just generally spends the most time playing and caring for the pet. If one party is more involved with the animal than the other, it’s in the pet’s best interest for that person to receive full custody. It’s also normal for the ex-spouse who is awarded custody of children to receive custody of pets as well, since keeping family pets around establishes some normalcy for the children.

Whose lifestyle is more conducive to caring for a pet?

People who travel often for work or deal with a demanding job and long commute don’t have as much time to take care of their pets. If your lifestyle doesn’t have room for a pet, don’t risk neglecting your cat or dog and accept that your ex-spouse is a better caretaker for the animal.

What is your motivation for wanting the pet?

Think about it: Do you really want the pet or are you just trying to get custody out of resentment? While a cat or a dog is not the same as a child, they are still living things that deserve your affection and full commitment, so if you don’t really want the pet to live with you it is best that you don’t fight for custody.

Is a joint-custody situation possible?

In some cases, when both parties are equally dedicated, people can agree to joint custody over pets. This means that if you are the person with full custody and you go on a vacation or you’re unable to take care of the pet due to illness, you can rely on your ex-spouse as a pet-sitter. The situation ensures that your pet will always be taken care of by someone who loves them and never left alone for a long period of time.

What is Custody?

In a divorce between two individuals who have children, custody will be determined. In Utah divorce law, there are two types of custodies. Physical and Legal.

Custody can be difficult, but is the result of what is in the child's best interest

Physical Custody

Utah defines physical custody as “where the children live”. This means essentially which parent they spend the majority of their time with, and most “overnights”. There are three distinctions of physical custody.

  1. Sole physical custody

This does not mean one parent has the child or children 100% of the time. In Utah, if you are awarded sole physical custody, you will have the them for at 255 “overnights”. This means that the other parent will still be able to have 110 “overnights” with them as well.

  1. Joint physical custody

Each parent will have the child in their home for at least 111 “overnights” every year. This usually requires that both parents live in close proximity to each other and are able to have an open communication with each other.

  1. Split physical custody

Although rare, split custody is when the court splits children up to live with different parents. For example if a couple gets divorced and they have two kids, one will go with person A, and the other will go with person B. This doesn’t mean the kids will never see each other, it just means they have different permanent addresses.

 

Legal Custody

This type of custody refers to who has the right to make important decisions about the child. Until children are 18 years of age and considered legally adults, there will be plenty of things that need to be addressed by the legal guardian with legal custody. There are two distinct types of legal custody, and they function similarly to physical custody.

  1. Sole legal custody

Sole legal custody is essentially what it sounds like. The court may award sole legal custody to a parent meaning that one parent will be completely responsible for decisions on behalf of the child, and the other parent must defer to them.

  1. Joint legal custody

In this situation, parents must share the right to legal custody. The caveat being that a judge may give one parent the right to make specific decisions for the child, but grant the other parent the right of being the primary caregiver of the child.

This decision will be made by a judge in the best interests of the child.

 

Four Reasons to Get a Divorce Lawyer

Relying on a professional attorney is a necessity

  1. Divorce is stressful enough

Deciding to handle your divorce yourself is a decision bound to bring you unnecessary stress. Not only do you have to deal with the emotional trauma you or your children experience, but you also have to think unemotionally and make sure you are getting a fair deal in the actual divorce. Let a lawyer deal with the legal headaches that come with divorce. They will try to make your experience as pain-free as possible so you can focus more on the important things like taking care of your family.

 

  1. Lawyers are experts

Imagine you are in a plane with your pilot friend who wanted to show off his new flying skills. Suddenly he faints and you are the one in charge of flying the plane. Who would you want to be talking you through landing the plane on the radio? A pilot of course. In the same way, lawyers who have studied and prepared to advocate for years are the people you want giving you advice and guidance. They know the ins and outs of the law and will help you to understand the sensitive issues of your divorce from beginning to end.

 

  1. Little mistakes can have big consequences

If you handle your divorce on your own, there are quite a few risks you are taking. For example, If you accidentally overvalue or undervalue an asset when dividing up property, you may have just unwittingly scheduled more court time in the future to take care of it. Since divorce is a legal agreement, you have to be exact on everything and when you are going through a divorce, there is so much stress attached to it that you might miss little mistakes that will cause you more problems later.

 

  1. Lawyers move the process along.

Going back to lawyers being experts at the law, there is a huge amount of paperwork associated with divorce and you may not understand all of it or be able to fill it all out correctly because of the turmoil caused by the divorce–and life in general. If you accidentally fill something out incorrectly, you will most likely have to extend the courtroom time and allow the divorce process to drag on. Let the experts handle it to insure that your divorce moves as fast as possible.

Contested and Uncontested Divorce

Courtroom One Gavel

In Utah, there are two types of divorce; contested and uncontested. Both may be settled outside of court, and both may require the Court’s intervention.

Contested Divorce

This method is best for those not able or willing to come to some kind of amicable agreement over things like child custody, alimony, and property. It is also used when a petitioner wants a divorce because of some fault their spouse has, or when only one party wants to pursue a divorce. Contested divorces more often go to trial and both parties will be compelled to make a case in front of a judge in that case. Even “no-fault” divorces may end up being contested if the parties cannot come to agreement on the terms of the divorce.

There are some advantages to a contested divorce over an uncontested divorce. For example, if all of the terms of a divorce petition are backed and supported by fact and by applicable law, a party may do better asking a judge to rule than trying to compromise against unreasonable demands. A party who believes their spouse has undisclosed assets or is hiding drug, alcohol, or abuse issues can invoke the process of formal discovery. A trial with rules of evidence—admissible, relevant, credible facts—established–may be the best policy in the long run.

Uncontested Divorce

Negotiations usually occur outside of court in an uncontested divorce. This is often the best option when the divorce is mutual and both sides are able to amicably agree on all important matters such as child custody, parent time, alimony, debt, child support, property division, and other issues. The only time they usually require a court’s attention is for a final approval from the judge.

This approach is usually much faster because there are few, if any, recurring court appearances and usually no lengthy process of legal discovery or preparation for trial. Most uncontested divorces can be completed within the 90 day waiting period from the date the petition for divorce is filed. It can also be much cheaper for both parties than a contested divorce—but beware! Don’t just agree to any old terms with the hope it will all “work out.” It usually doesn’t. Don’t agree to vague terms such as “parent time as the parties agree”.

Mediation can be less emotionally and physically taxing as well, since it is done outside of court in an positive environment, and both parties may come to amicable agreement over important issues. It is often easier on couples with children as well. One of the biggest advantages of an uncontested or mediated divorce is that it puts you in control of your divorce, rather than being subject to the rulings of a judge. It will be better in the long run, as you will be less likely to file a petition for modification later on. Mediation is required in all contested cases. It may be used if a case is only contested in one area, for example.

If you have any questions regarding contested and uncontested divorce, or any other questions about family law in general, don’t hesitate to call the  Huntsman Firm at (435) 628-2846.

 

 

A LICENSE TO PARENT

In our society, we need a license to drive a car on a public street. We need a license to practice law or medicine, to be a professional contractor, electrician or plumber, to hunt deer or to fish a public stream. Even a dog or cat needs a license to survive these days. You need a license to marry.

But you do not need a license to have or raise our precious children.

The law generally assumes that children born into a valid marriage “belong” to the parties to that marriage. Custody, parent time and related legal rights between lawfully married parents generally do not need to be proven, unless there is a divorce or legal separation.

If you choose to sire, conceive, bear, and raise up these treasures, do it right. Love them. Take quality time with them, and lots of it. Choose their other parent with care before creating this important life. Be kind to the other parent.

Kids are damaged when parents fight. It’s not about you. It’s about them. And they know when there is undue stress or abuse of any kind in the home. They rarely, if ever, recover from it.

Children are your trust. Their needs must come before your own, despite the noise you may hear from “modern” counselors of the joys of a self-centered life.

For a better marriage, or when serious strains appear, good professional counseling from a clinical psychologist or a licensed therapist is often helpful. But if all fails, hire a good lawyer to protect yourself and your children.

See our blog “Choose Your Lawyer Well”.