Utah Child Custody Agreement

Introduction

Key Things to Know

1. 1

   A parenting plan is filed either way. Section 81-9-203(2)(a) requires each parent to file and serve a proposed parenting plan in a proceeding between parents regarding custody or parent-time, at the time of the original petition or of the answer or counterclaim, and section 81-9-203(2)(b) carries the same duty into modification proceedings. Section 81-9-203(6)(a) allows parents who agree to submit one plan jointly with a verified statement signed by both. The duty has teeth: under section 81-9-203(3), if one parent does not file, the other may move the court for an order of default to adopt that parent's plan.

2. 2

   What agreement actually displaces is Utah's statutory schedule. Section 81-9-302(2) provides that if the parties do not agree to a parent-time schedule for a child aged five to eighteen, the schedule set out in that section is considered the minimum parent-time, and section 81-9-206(1) lets the court establish or impose a Part 3 schedule only if the parties are unable to agree. Section 81-9-202(2) says outright that a mutually agreed schedule is preferable to a court-imposed solution. Section 81-9-303(2) goes further and makes the increased schedule of roughly 145 overnights available when the parties agree, as a straight alternative to the noncustodial parent having to demonstrate the matters that section otherwise requires.

3. 3

   Agreeing does not supply the court's finding. Section 81-9-204(2) provides that the court shall determine whether an order for custody or parent-time is in the best interests of the minor child by a preponderance of the evidence, and section 81-9-205(1) permits an order of joint legal or joint physical custody only if a parenting plan has been filed and the court determines by that standard that joint custody is in the child's best interest. Section 81-9-205(2) does create a rebuttable presumption that joint legal custody is in the child's best interest, rebuttable by a preponderance, but section 81-9-205(2)(a)(i) disables it where there is evidence of domestic violence, neglect, or physical, sexual or emotional abuse. Where joint custody is ordered, section 81-9-205(9) directs the court to include the terms of the parenting plan in the order where possible, so the plan's terms operate because the court writes them in.

4. 4

   Utah's word for contact between a parent and a child is parent-time, and it is not a cosmetic rename. Part 3 of chapter 9 writes out minimum, optional and equal parent-time schedules in operative detail, so calling the same thing visitation understates what the statute contains. Two definitions catch people out. Section 81-9-101(8) defines joint physical custody as the child staying with each parent overnight for more than thirty percent of the year with both parents contributing to expenses, so a Utah parent who assumes joint physical custody means a fifty-fifty split is wrong by statute, and section 81-9-101(7) defines joint legal custody as the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified.

5. 5

   Section 81-9-203 prescribes what the plan must contain. It must include provisions for resolution of future disputes between the parents, an allocation of decision-making authority, residential provisions for the child, provisions addressing notice and parent-time responsibilities if a party relocates, a process for resolving disputes chosen from counseling, mediation or arbitration, or court action, an allocation of decision-making over education, healthcare and religious upbringing, an education plan designating the home residence for school assignment purposes and which parent decides education questions if the parents cannot agree, a residential schedule covering holidays, birthdays of family members, vacations and other special occasions, provisions addressing foreseeable custodial issues for a service member parent on deployment, and an attached verified statement that the plan is proposed in good faith. Section 81-9-205(8) then requires an order of joint legal or joint physical custody to include a dispute resolution procedure the parties agree to use before seeking enforcement or modification through litigation, except in an emergency.

6. 6

   The custody factors run in two layers, and a third sits on top for joint custody. Section 81-9-204(3) lists three matters the court shall consider: evidence of domestic violence, physical abuse or sexual abuse; intentional exposure of the child to pornography or material harmful to minors; and whether custody or parent-time would endanger the child's health or physical or psychological safety. Section 81-9-204(4) then lists eighteen more, from (a) to (r), which the court may consider among other factors the court finds relevant, opening with evidence of coercive control as defined in section 81-9-101(2) and closing with a catch-all. Section 81-9-205(5) adds nine further factors the court shall consider on whether joint legal or joint physical custody is in the child's best interest, so a Utah joint custody question runs on a longer list than the twenty-one in section 81-9-204 alone.

7. 7

   Utah addresses domestic violence by mandatory consideration rather than by a presumption against custody. Section 81-9-204(10) provides that the court shall consider evidence of domestic violence if it is presented, and that the court shall consider as primary the safety and well-being of the minor child and the parent who experiences domestic violence, and it treats a Cohabitant Abuse Protective Order as evidence of real harm or substantiated potential harm. Section 81-9-204(11) makes the section's pro-access propositions apply only absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child, section 81-9-205(2)(a)(i) removes the joint legal custody presumption where there is such evidence, and section 81-9-207 allows the court to order supervised parent-time on findings of likely physical or emotional harm or abuse. If there has been abuse, coercive control, or a protective order, this is a situation to raise with a lawyer rather than settle on a form.

Utah Requirements for Child Custody Agreement

• Proposed Parenting Plan Required, Utah Code 81-9-203(2)

  Each parent must file and serve a proposed parenting plan in a proceeding between parents regarding custody or parent-time, at the time of the original petition or of the answer or counterclaim, and the duty extends to modification proceedings. It is not limited to a parent seeking joint custody.

• Joint Plan and Default, Utah Code 81-9-203(3) and (6)

  Parents who agree may submit one plan jointly with a verified statement signed by both. If one parent does not file a plan, the complying parent may move the court for an order of default to adopt that parent's plan, so non-filing has a concrete consequence.

• Prescribed Plan Contents, Utah Code 81-9-203

  The plan must cover resolution of future disputes, allocation of decision-making authority, residential provisions, notice and parent-time responsibilities on relocation, a dispute resolution process, decision-making over education, healthcare and religious upbringing, an education plan and school access, a residential schedule including holidays, family birthdays, vacations and other special occasions, deployment provisions for a service member parent, and an attached verified good faith statement.

• Best Interests Determination, Utah Code 81-9-204(2)

  The court shall determine whether an order for custody or parent-time is in the best interests of the minor child by a preponderance of the evidence. Utah is unusual in naming a burden of proof for the best interest question, and agreement does not supply the finding.

• Custody Factors, Utah Code 81-9-204(3) and (4)

  Three matters must be considered, covering domestic violence and abuse, intentional exposure to pornography or material harmful to minors, and endangerment of the child's health or physical or psychological safety. Eighteen further factors, lettered (a) to (r), may be considered among other factors the court finds relevant, beginning with evidence of coercive control and ending with a catch-all.

• Joint Custody Order Requirements, Utah Code 81-9-205(1) and (5)

  The court may order joint legal or joint physical custody only if a parenting plan has been filed and the court determines that joint custody is in the child's best interest. Section 81-9-205(5) adds nine factors the court shall consider on that question, on top of the section 81-9-204 lists.

• Dispute Resolution Procedure, Utah Code 81-9-205(8)

  An order of joint legal or joint physical custody must require the parenting plan to contain a dispute resolution procedure that the parties agree to use before seeking enforcement or modification through litigation, except in an emergency. Name the process in the plan rather than leaving it open.

• Statutory Parent-Time Schedules, Utah Code 81-9-302(2) and 81-9-303(2)

  If the parties do not agree to a parent-time schedule for a child aged five to eighteen, the schedule in section 81-9-302 is the minimum parent-time. The increased schedule of roughly 145 overnights in section 81-9-303 is available when the parties agree, as an alternative to the showing that section otherwise requires. An agreed schedule replaces the statutory one, so it should be written out in full.

• Relocation Notice, Utah Code 81-9-209

  Relocation means moving 150 miles or more from the residence of the other parent, and the relocating parent must give written notice at least 60 days before the intended move, with prescribed affirmations about following the relocation parent-time provisions and not interfering with court-ordered parent-time. The court may set a hearing on any party's motion or its own, and may order a change of custody if a parent relocates after the court determines the move is not in the child's best interest.

• Domestic Violence and Safety, Utah Code 81-9-204(10) and (11)

  The court shall consider evidence of domestic violence if presented and shall consider as primary the safety and well-being of the minor child and the parent who experiences domestic violence, and a Cohabitant Abuse Protective Order is evidence of real harm or substantiated potential harm. The section's pro-access propositions apply only absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child.