Utah Child Custody Agreement
Both parents file a proposed parenting plan whether they agree or not, and what agreement changes is which schedule ends up in the order.
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Introduction
Utah requires a proposed parenting plan from each parent, and it requires one whether or not the parents agree. Utah Code section 81-9-203(2)(a) provides that in a proceeding between parents regarding the custody or parent-time for a minor child, the parent shall file and serve a proposed parenting plan at the time of the filing of the parent's original petition or at the time of filing the parent's answer or counterclaim. Parents who agree may file a single plan jointly under section 81-9-203(6)(a), with a verified statement signed by both, instead of two competing ones. Agreement does not by itself decide anything: section 81-9-204(2) puts the best interests determination on the court by a preponderance of the evidence, and section 81-9-205(1) allows an order of joint legal or joint physical custody only where a parenting plan has been filed and the court itself makes that finding. Where agreement does its real work is the schedule. Utah's Part 3 parent-time schedules are written out in the statute in operative detail, and section 81-9-302(2) applies the minimum schedule only if the parties do not agree, while section 81-9-206(1) lets the court establish or impose a schedule only if the parties are unable to agree. An agreed schedule in Utah is not filling in a blank, it is replacing text the legislature has already written.
Key Things to Know
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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.
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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.
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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.
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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.
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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.
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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.
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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.
Key decisions before you file
Before you file a Child Custody Agreement in Utah, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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Utah Requirements for Child Custody Agreement
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
Frequently Asked Questions
Agreement changes the schedule, not the court's job. 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 written 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) states that a mutually agreed schedule is preferable to a court-imposed solution, and section 81-9-303(2) makes an increased schedule of roughly 145 overnights available when the parties agree, without the showing that section otherwise requires. What agreement does not do is supply the finding: under section 81-9-204(2) the court still determines whether the order is in the child's best interests by a preponderance of the evidence.
Yes, and the duty is on each parent individually. Section 81-9-203(2)(a) provides that in a proceeding between parents regarding the custody or parent-time for a minor child, the parent shall file and serve a proposed parenting plan at the time of filing the original petition or at the time of filing the answer or counterclaim, and subsection (2)(b) extends the duty to modification proceedings. It is not limited to parents seeking joint custody. Parents who agree may file one plan jointly under section 81-9-203(6)(a) with a verified statement signed by both, and under section 81-9-203(3) a parent who files may move for an order of default to adopt that plan if the other parent does not.
Yes. The parents' document becomes operative because the court writes it into an order, not because both parents signed. 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. Section 81-9-205(9) then directs that in an order of joint legal or joint physical custody the court shall, where possible, include in the order the terms of the parenting plan provided under section 81-9-203. The qualifier where possible does real work, and no Utah statute directs the court to adopt an agreed plan or gives it a presumption.
Section 81-9-203 sets the contents. The plan 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 the child's education, healthcare and religious upbringing, an education plan designating the home residence for school assignment purposes, which parent decides education questions if the parents cannot agree, and whether one or both parents may access and check the child out of school, a residential schedule designating in which parent's home the child resides on given days including holidays, birthdays of family members, vacations and other special occasions, and provisions for a service member parent addressing foreseeable custodial issues on deployment. A verified statement that the plan is proposed in good faith is attached to it.
Two things, and parental agreement is not one of them. Section 81-9-205(1) provides that the court may order joint legal custody or joint physical custody only if a parenting plan has been filed and the court determines that joint custody is in the best interest of the minor child. Section 81-9-205(2) supplies a rebuttable presumption that joint legal custody is in the child's best interest, rebuttable by a preponderance of the evidence, but section 81-9-205(2)(a)(i) disables the presumption where there is evidence of domestic violence, neglect, or physical, sexual or emotional abuse. Section 81-9-205(8) also requires the resulting order to include a dispute resolution procedure the parties agree to use before litigating enforcement or modification, except in an emergency.
Parent-time is Utah's statutory term for a parent's time with the child, and Part 3 of chapter 9 writes out the schedules rather than leaving them to a local form. Section 81-9-302(2) provides that if the parties do not agree to a parent-time schedule for a child who is five to eighteen years old, the schedule in that section is considered the minimum parent-time, and it is drafted down to the level of a weekday evening from 5:30 to 8:30 p.m. and alternating weekends from Friday at 5:30 p.m. to Sunday at 8:30 p.m., together with holidays and summer. Section 81-9-303 provides an optional increased schedule of roughly 145 overnights, which subsection (2) makes available when the parties agree. Parents who want something different write it into the plan they file.
Not what most people assume. Section 81-9-101(8) defines joint physical custody as the minor child staying with each parent overnight for more than thirty percent of the year, with both parents contributing to the expenses of the child in addition to any child support obligation. So an arrangement well short of an even split can still be joint physical custody under Utah law. Section 81-9-205(6) also requires the court to warn the parties that an order of joint physical custody may affect eligibility for cash assistance under Title 35A, chapter 3, which is a consequence parents rarely anticipate when they agree to share overnights.
They come in two lists with different force. Section 81-9-204(3) sets out three matters the court shall consider: evidence of domestic violence, physical abuse or sexual abuse involving the child, the parent or a household member; 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) sets out eighteen more, lettered (a) through (r), which the court may consider among other factors the court finds relevant, opening with evidence of coercive control as defined at section 81-9-101(2) and ending with any other factor the court finds relevant. That is twenty-one in section 81-9-204, and section 81-9-205(5) adds nine further factors the court shall consider on joint custody specifically. The lists do not switch off because the parents agree.
Section 81-9-209 defines relocation as moving 150 miles or more from the residence of the other parent, so the trigger is distance from the other parent rather than from a school or a county line, and a shorter move is not a relocation under the section. The relocating parent shall provide written notice to the other parent at least 60 days before the day on which the parent intends to relocate, and section 81-9-209(3) prescribes what the notice says, including an affirmation that the statutory relocation parent-time provisions or a schedule approved by both parties will be followed and that the parent will not interfere with the other parent's court-ordered parent-time. There is no objection deadline and no requirement to petition for permission, but under section 81-9-209(4) the court shall schedule a hearing on the motion of any party or on its own motion, and under section 81-9-209(6), if the court determines that relocation is not in the child's best interest and the custodial parent relocates anyway, the court may order a change of custody. Section 81-9-209(9) also writes out a complete long distance parent-time schedule that applies unless the court orders otherwise.
By mandatory consideration rather than by a presumption against the abusive parent. Section 81-9-204(10) requires the court to consider evidence of domestic violence if it is presented, and to consider as primary the safety and well-being of the minor child and the parent who experiences domestic violence, and it provides that a Cohabitant Abuse Protective Order counts as evidence of real harm or substantiated potential harm. Section 81-9-204(11) applies the section's pro-access propositions 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 evidence of domestic violence, neglect, or physical, sexual or emotional abuse, and section 81-9-207 permits the court to order supervised parent-time on findings of likely physical or emotional harm or abuse. Section 81-9-209(8) also requires specific findings where a parent relocates because of domestic or family violence by the other parent.