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Legal Information: Utah

Custody

Laws current as of September 19, 2024

What are the steps to file for custody?

Before you start a custody case, you may consider making an out-of-court agreement with the other parent. People often must be flexible about custody and parent-time to benefit their child. People who fight for sole custody may be in court for months or even years. And they may still end up with some form of joint custody after a settlement or trial.

However, sometimes, people must fight for sole custody because they can’t agree with the other parent. You may need to file for custody if the other parent is keeping the child from you or you fear for the child’s well-being or safety. If the other parent committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the people.

To read more about some issues you may want to think about if you are starting a case against an abuser, go to the Safety Issues section of our Court System Basics page. You can also watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process. The videos discuss the different types of custody and visitation, how judges decide, child support, and moving out of state with your child. 

If you decide to file for custody in court, the process usually looks something like this:

1. File for custody

The legal paperwork that starts a custody case is called a petition. You may file your custody petition in family court or another court that handles custody cases. You will usually file in the county where the child lives. Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary order when you file your petition.

The exact petition you file may depend on whether or not you are married.

  • If you are married and getting divorced from your child’s other parent, you can usually file for custody in the divorce case.
  • If you are married but not filing for divorce, or if you aren’t married to your child’s other parent, you can file a separate custody petition. However, if you aren’t married and the father hasn’t been legally recognized by signing an affidavit of paternity or through a child support or paternity case- you usually need to establish paternity first. To do this, you can file a petition to establish paternity in court.

The custody petition forms will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff to help you complete the forms you need to file. However, court staff can’t advise or represent you. The specific steps for filing will depend on your exact case and the procedures in your county. It’s a good idea to get help from a Utah lawyer to make sure you have all the forms and fill them out correctly. You can use our Utah Courthouse LocationsDownload Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

When you file your custody petition, the clerk will tell you when to return to court. After you file, the papers must be served to the other parent.

2. Prepare for the custody process

Custody cases are complicated, so you may want to get a lawyer. If you can hire a lawyer, you can use this list of questions as a guide when deciding who to hire. If you are representing yourself, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section.

You can prepare for your case by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest” factors that a judge in your state looks at to figure out what’s best for your child. To see the factors in Utah, go to How does a judge decide about custody and parent-time? The judge may issue temporary custody and parent-time orders while the case is going on.

Keep in mind that custody court cases often take a long time. Going through this process can be emotionally and financially draining. Do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

3. Prepare for trial

There will usually be one or more hearings, including a trial, if you and the other parent cannot reach an agreement by yourselves, with the help of your lawyers, or through mediation. At the trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. After the trial, the judge will decide what s/he thinks is best for your child and issue a final custody and parent-time order.

If you are a victim or survivor of domestic violence, you can ask the judge to include protections in your temporary and final custody and parent-time orders. For example, you can ask the judge to order the following:

  • All communication between the parents must be in writing.
  • The parents can only communicate with each other about the child.
  • Another person, like a friend or relative who gets along with both parents, should be there when the parents exchange the child or should do the drop-off and pick-up.

4. Options if you lose the custody case

If you disagree with the judge’s order, there are a couple of legal actions that you might be able to take right away, such as filing a motion for reconsideration or an appeal.

  1. motion for reconsideration asks the judge to decide differently based on the law or new evidence.
  2. An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.

You might also be able to ask the judge to change your order in the future, by filing a motion or petition to change (modify) the order. However, usually, this can only be done if there is a “substantial change of circumstances.” Here are a few examples of events that might be considered substantial changes in circumstances:

  • The other parent gets sent to jail or charged with child abuse or neglect.
  • You move or the other parent moves to another state.
  • Your child’s needs change in a big way.

How does a judge decide about custody and parent-time?

A judge will make the custody and parent-time arrangement s/he thinks is in your child’s “best interests.”1

According to Utah law, a judge must consider the following factors for both parents:

  1. any evidence of domestic violence, physical abuse, or sexual abuse involving the child, the parent, or others in the parent’s home; Note: A judge must consider evidence of domestic violence if you present it;2
  2. whether either parent purposely let the child see pornography or material harmful to minors; and
  3. whether allowing custody and parent-time would put the child’s health or physical or psychological safety at risk.3

A judge may also consider the following factors for both parents:

  1. evidence of psychological maltreatment, which means a repeated pattern or an extreme incident of caretaker behavior that:
    • purposely interferes with a child’s basic psychological needs, such as the need for physical and emotional safety, mental stimulation, and respect;
    • sends the message that the child is worthless, defective, or expendable; and
    • could terrorize a child;4
  2. how well both parents understand, respond to, and can meet the child’s needs, including physical, emotional, educational, and medical needs, and any special needs the child has; 
  3. the parenting skills of both parents;
  4. how well you each can co-parent by looking at if you and the other parent: 
    • communicate appropriately with each other;
    • encourage your child to have a loving relationship with the other parent; and
    • allow your child to have “frequent and continuous contact” with the other parent; however, if you don’t allow contact with the other parent because you are trying to protect your child from domestic violence, abuse, or neglect, the judge may consider that;
  5. both parents’ ability to care for the child themselves (“personal care”) instead of having someone else take care of him/her (“surrogate care”);
  6. past behavior and moral character;
  7. emotional stability;
  8. whether either parent can’t act as a parent because of drug abuse, drinking too much, or another reason;
  9. whether either parent has given up custody or parent-time before and if so, the reasons why;
  10. how much each parent really wants custody or parent-time;
  11. whether either parent has “religious compatibility” with the child;
  12.  financial responsibility;   
  13. how the child gets along with stepparents and extended family members;
  14. who has been the child’s primary caretaker;
  15. what were the past parenting arrangements during a time when the child was happy and well-adjusted at home, at school, and in the community;
  16. whether your child will be kept together with his/her siblings;
  17. your child’s wishes and concerns, taking into account his/her mental ability and emotional maturity;
  18. your child’s relationship with you compared to his/her relationship with the other parent; and
  19. any other factor the judge thinks is relevant.5

Note: If you have a disability, a judge can’t deny you custody just because of your disability. S/he can consider your disability only if it “significantly or substantially” prevents you from providing for your child’s needs and you don’t have enough of a support system, money, or resources to help you.6

Note: When the judge is looking at a parent’s past behavior or moral character in #4 or any other factor, the judge can’t treat the parent’s possession or use of legal medical marijuana differently than having any other prescription medication. The judge also can’t discriminate against a parent for being a medical marijuana cardholder or working in the medical marijuana industry.7  

Note: When the judge is looking at a parent’s past behavior or moral character in #4 or any other factor, the judge also can’t discriminate against a parent based on whether they agree or disagree with the child’s:

  • statement that his/her gender identity is different from his/her biological sex; or
  • practice of expressing a gender identity that’s different from his/her biological sex.8

1 UT ST § 81-9-204(1)
2 UT ST § 81-9-204(3)(a), (9)(a)
3 UT ST § 81-9-204(3)(b), (3)(c)
4 UT ST §§ 81-9-204(4)(a); 81-9-101(9)
5 UT ST § 81-9-204(4)(b)-(q)
6 UT ST § 81-9-204(6)
7 UT ST § 81-9-204(9)(a)
8 UT ST § 81-9-204(9)(b)

 

Will a judge always give joint legal custody?

In Utah, there is what’s called a “rebuttable presumption” in favor of joint legal custody. This means that a judge usually will assume that joint legal custody is in your child’s best interest. However, you can try to present evidence in court to change the judge’s mind.1

There are some situations when a judge will assume that joint legal custody is not in your child’s best interests, including if:

  • there is evidence of domestic violence, neglect, or physical, sexual, or emotional abuse involving your child, you, or others in your home;
  • either you, the other parent, or your child has special physical or mental needs that make joint legal custody unreasonable;
  • you and the other parent live far away from each other and can’t practically make joint decisions; or
  • there is another reason the judge believes joint custody is not in your child’s best interest.1

1 UT ST § 81-9-205(2)

How does a judge decide whether to give joint custody?

When deciding on joint legal custody, joint physical custody, or both, the judge must consider:

  1. whether some form of joint custody would support the child’s needs and development;
  2. if the parents can prioritize the child’s best interests and make shared decisions;
  3. how well the parents co-parent, including whether they: 
    • communicate appropriately with each other;
    • encourage a loving relationship between the child and the other parent; and
    • allow the child to have “frequent and continuous contact” with the other parent, though if a parent limits contact to protect the child from domestic violence, abuse, or neglect, the judge may consider this;
  4. whether both parents participated in raising the child before they separated or divorced;
  5. how close the parents live to each other;
  6. the child’s preference if s/he is old enough and able to express it;
  7. the parents’ maturity, and their ability and willingness to shield the child from conflict;
  8. how well the parents work together and make joint decisions, now and in the past; and
  9. any other factors the judge believes are relevant.1

These factors are in addition to the other “best interest” considerations listed in How does a judge decide about custody and parent-time?1

1 UT ST § 81-9-205(2)