Child Custody and Support Information: Summary of Terms and Issues in Paternity/Custody Cases
Child Custody and Support Information
Summary of Terms and Issues in Paternity/Custody Cases
1. RESIDENCY – State, City & County in which you now live and the court in which you are filing. Jurisdiction and court venue are determined according to length of residency of the parties and the “home state” of the children. The children must have resided in the State of Utah for at least 6 months to file in Utah. The proper venue is the County where the children have primarily resided for at least 3 months prior to filing the case.
2. CUSTODY – Who will be the primary caretaker & who will exercise parent-time (visitation). Decisions regarding custody and parent time should primarily revolve around the best interest of the children and revolve secondarily around the schedules and availability of the parties. In most cases, parental care trumps surrogate care when the primary custodian is not available. The common types of custody include:
i. Sole Physical Custody – The parent who the child or children live with and who has complete rights to keep the child. (Very commonly used subject to parent time with non-custodial parent)
ii. Sole Legal Custody – only one parent has the right to make decisions for the child including medical treatment. (Not used often – too limiting).
iii. Joint Physical Custody – Parents share the child as equally as possible and try to raise the child in a way that is equal. (Trend toward joint parenting or co-parenting because it is generally in the best interest of the children. Works best when parties live close together, usually within the same school district. Another option is Sole Physical Custody with extended parent time to the non-custodial parents).
iv. Joint Legal Custody – allows both parents to make decisions for the child while in their custody and during parenting time. (Used frequently and recommended in most situations. Subject to joint parenting plan.)
Parent Time – done primarily when one
parent presents a threat to the health safety and welfare of the parties’ minor
child or children.
3. PRIOR AND CONCURRENT PROCEEDINGS – Utah law requires the petitioner in a custody or parentage action to disclose any other court proceedings regarding the parties and the parties minor children, including the status and disposition of those cases. (Is there a case ongoing in juvenile court involving the children or a case in any court currently that involves either of the parents or the children at issue? Is there a protective order case previously filed or pending? Is either parent dealing with current criminal charges?)
4. CHILD VISITATION OR PARENT TIME – Driven by statute, but may have limitations based on parental behavior. Unless there is a specific finding and order to the contrary, a non-custodial parent is entitled to the minimum parent time outlined in the statute. A workable parent time plan can be agreed upon by the parties at mediation or through the assistance of counsel.
5. CHILD SUPPORT – Based on the combined incomes of both parties and driven by statute. Usually paid to the custodial parent, however in joint custody situations the calculation is different and may result in neither party paying the other party anything. Parties are encouraged to determine the custody arrangement which is in the best interest of the children then compute the child support accordingly despite the obvious temptation to seek the custody arrangement with the greatest financial incentive.
6. DAYCARE EXPENSES – Divided equally, and available for reasonable work or education related expenses and any others you may agree on. Usually the parent who needs to get daycare or babysitting must first offer the time to the other parent which is called the right of first refusal.
7. HEALTH AND ACCIDENT INSURANCE – One party usually provides and the other party usually must pay for one half of the premium to cover the children alone.
8. INCOME WITHHOLDING – A method of collecting child support, done through the Utah Office of Recovery Services (ORS). Has a monthly fee for collecting, however they keep immaculate records. ORS will engage in collection efforts and when necessary institute contempt proceedings if child support, spousal support or court-ordered judgments within the decree are not paid.
9. INCOME – Based on Current or historic incomes. You cannot voluntarily reduce your income by quitting your job. Overtime is not typically included unless it is consistent and likely to continue.
10. TEMPORARY RELIEF – Unmarried parents are often worried about the other parent taking the child out of the area and not returning them because there is no order in place. Temporary orders can be obtained from the court to address support and custody issues while the action is pending and provide stability and peace of mind to the parties and the children. Temporary orders ensure there is an order in place granting legal and physical custody to at least one party and ensuring needed domestic support orders are in place to meet the needs of the children (such as child support, daycare, medical insurance and out of pocket costs). Temporary orders serve the dual purpose of providing order and stability to the parties by having an enforceable order to govern the parties during lengthy litigation as well as providing stability to the children and peace of mind to the parties.
11. COSTS AND ATTORNEY FEES – Unless the court orders otherwise, each party is liable for his or her own attorney fees and court costs. The filing fee is paid by the petitioner, however the respondent will have to pay a filing fee if a counterclaim is filed. We can seek an order for the opposing party to pay attorney fees, particularly if we can show the other party’s conduct resulted in the necessity of seeking judicial relief and incurring attorney fees. The issue of attorney fees is commonly reserved by the court until the final order. Often the issue is ultimately resolved in mediation.
12. MEDIATION – Under Utah law, the parties to a divorce action are required to engage in alternative dispute resolution more commonly referred to as mediation. In any divorce action which includes contested issues, the parties shall participate in good faith in at least one session of mediation. If after one session, the parties do not feel the mediation is assisting them in the resolution of their issues, they may move forward with court litigation.
Do you have questions about Custody or Domestic Support Obligations?
Do you need assistance or advice in a Child Custody or Parentage case?
Call attorney Troy R. Jensen – 801-612-2112 – JENSEN LEGAL
KNOW THE LAW, KNOW YOUR RIGHTS, KNOW I WILL FIGHT FOR YOU!
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