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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.

Fathers’ Rights in a Divorce

Due to historical gender roles where women were considered the primary caregiver, it is still most common for mothers to be granted primary custody instead of fathers. This gender bias often leaves many caring and involved fathers disconnected from their children. If you are a father going through a divorce, you should know that you have natural rights and responsibilities regarding your children during and after divorce. These rights do not need to be court ordered, they are guaranteed by the United States constitution and the laws of your individual state from the moment you became a father.

Unless a court rules otherwise, your rights as a father include the following:

  • Being an involved influence in your children’s lives, interacting and spending time with them
  • Loving and nurturing the children without harassment from the other parent
  • Deciding where your children will live
  • Participating in the parenting of your children
  • Access to your children’s school and medical records
  • Participating in children’s extracurricular activities
  • Custody, care and control of your children
  • Choosing your children’s school
  • Determining your children’s religious faith
  • Making decisions about your children’s medical and dental care
  • Following your own beliefs and parenting style without interference
  • Guiding and disciplining your children
  • Choosing what is best for the children

Along with these rights, fathers have the following responsibilities as a parent:

  • Supporting children
  • Providing food, shelter and clothing
  • Seeing that children receive appropriate medical treatment
  • Giving your children access to good schooling
  • Protecting children from harm and neglect
  • Fostering their relationship with the other parent
  • Giving them all the love, nurturing and encouragement you possibly can
  • Keeping in contact with your child
  • Doing everything within your power to keep your marital problems and negative feelings from impacting your child
  • Behaving in a manner that helps your child trust you

You have the same legal rights as your child’s mother before and during the divorce. As a father you have the right to stay in the home you share with your children. You also have the legal right to refuse to allow their mother to remove them from the home. No matter what your ex-wife wants, your right to father your children is constitutionally protected.

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?

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.

Before Filing for Divorce

Divorce can be an emotionally and physically draining process that lasts for a long time, and can be costly. Before you choose to follow through with a divorce, consider the following.

Divorce is an event that takes place between a petitioner and a respondent. Some common issues that may need to be dealt with in court are child custody, child support, parent time (parental rights), alimony (also known as spousal support), and division of debt, property, and any retirement or pension benefits.

Before filing for divorce:

Select an attorney who is in good standing with the Bar, and whose practice is dedicated to Family Law. Avoid “self-help” schemes. These will cause you untold sorrow later. Avoid the “cheap” or cut-rate lawyers or anyone who guarantees a certain outcome. No responsible lawyer can guarantee any outcome or do a responsible job fora flat fee of any kind. Insist that your lawyer carry errors and omissions coverage (i.e., “malpractice insurance”). Avoid like the plague any who do not.

Be guided by reason and good sense. Good luck whomever you choose.

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”.