Joint Legal Custody Ain’t All It’s Cracked Up to Be in Utah



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Some parents think that getting their spouse to agree to joint legal custody during a divorce means an end to the bickering over decisions in their child(ren)’s lives: obviously the parents will discuss and reach important choices together, come to an agreement like adults, and move forward for the best interest of the child(ren), right? Wrong. Do not succumb to the deceptively sweet sounding siren song of “joint legal custody” without knowing the law.

The truth is, agreeing to “joint legal custody is only the beginning.” The Utah Code defines joint legal custody as:

Utah Code § 30-3-10.1. Definitions — Joint Legal Custody — Joint Physical Custody

As used in this chapter:

(1) “Joint legal custody”:

(a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;
(b) may include an award of exclusive authority by the court to one parent to make specific decisions;
(c) does not affect the physical custody of the child except as specified in the order of joint legal custody;
(d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and
(e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

With all the different arrangements that qualify, an agreement to joint legal custody is actually just an agreement to enter into a statutorily required power struggle. In Utah, there is a rather nasty set of provisions guiding the exercise of joint legal custody between parents from ‘get out of jail free’ style exemptions from cooperative parenting when a child is staying with one parent, to the ultimate veto for one parent in the form of “final decision-making authority.” Any of these types of lopsided agreements can be considered joint legal custody in Utah, and that is why working with a skilled attorney when negotiating the terms of your custody order can be crucial. The Utah Code provides:

Utah Code § 30-3-10.3. Terms of Joint Legal or Physical Custody Order

(1) Unless the court orders otherwise, before a final order of joint legal custody or joint physical custody is entered both parties shall attend the mandatory course for divorcing parents, as provided in Section 30-3-11.3, and present a certificate of completion from the course to the court.
(2) An order of joint legal or physical custody shall provide terms the court determines appropriate, which may include specifying:

(a) either the county of residence of the child, until altered by further order of the court, or the custodian who has the sole legal right to determine the residence of the child;
(b) that the parents shall exchange information concerning the health, education, and welfare of the child, and where possible, confer before making decisions concerning any of these areas;
(c) the rights and duties of each parent regarding the child’s present and future physical care, support, and education;
(d) provisions to minimize disruption of the child’s attendance at school and other activities, his daily routine, and his association with friends; and
(e) as necessary, the remaining parental rights, privileges, duties, and powers to be exercised by the parents solely, concurrently, or jointly.

(3) The court shall, where possible, include in the order the terms of the parenting plan provided in accordance with Section 30-3-10.8.
(4) Any parental rights not specifically addressed by the court order may be exercised by the parent having physical custody of the child the majority of the time.
(5) The appointment of joint legal custodians does not impair or limit the authority of the court to order support of the child, including payments by one custodian to the other.
(6) An order of joint legal custody, in itself, is not grounds for modifying a support order.
(7) An order of joint legal or physical custody shall require a parenting plan incorporating a dispute resolution procedure the parties agree to use before seeking enforcement or modification of the terms and conditions of the order of joint legal or physical custody through litigation, except in emergency situations requiring ex parte orders to protect the child.

Where divorcing parents have agreed to an award of “joint legal custody” it is nevertheless common for one parent (usually the mother) to request “final decision-making” or “tie-breaking [sic]” authority in the event of an impasse between the parents over a decision affecting a child or children. The party requesting this “final decision-making” authority will defend the request by claiming that without “final decision-making” authority a decision might never be reached, to the detriment of the child.

This argument is patently nonsense. Married couples (at least normal ones) don’t designate which spouse has “final decision-making authority,” so why is that necessary or even warranted in divorce settings (and don’t default to the hackneyed, intellectually lazy excuse that it’s because divorcing couples don’t get along—married couples don’t “get along” all the time either, yet they manage just fine).

What “final decision making authority” is really about is the unequal exercise of power. It means that if and when the parents disagree, the parent holding the “final decision making authority” rules. That means that the parent who does not have “final decision making authority” isn’t really a joint legal custodian, i.e. he “has” joint decision-making authority only so long as the parties agree (a species of “heads I win, tails you lose”). That would make joint legal custody illusory and a nullity. Joint legal custody has no meaning and is not “joint” unless neither party has more or less authority than the other; to award joint legal custody, but then award either parent “final decision making authority” in the event of an impasse is illusory and oxymoronic.

The olive branch of joint legal custody is a wonderful thing to extend to your spouse in a divorce. If the two of you made decisions together regarding your child(ren) whom you both still love, agreeing to make important decisions together in the future should be a no-brainer. Research shows the exercise of joint custody reduces inter-parental conflict, not increases it. Be wise, however, if an offer of “joint legal custody” is extended to you. Clearly, not all “joint legal custody” awards are created equal (no pun intended). Until you know all the terms involved, an offer of mere “joint legal custody” may be no offer at all.

If you’re curious, because of the deceptive way Utah Code Sections 30-3-310.1 and 30-3-10.3 drafted, here is an example of typical “joint legal custody” language that I often include in the divorce decrees I draft:

The parties are awarded joint legal custody of the minor children such that the parties share equally between them any and all rights, privileges, duties, authority, and powers of a parent equally, concurrently, and jointly as to the children’s education, health care, religious upbringing, medical care, physical care, physical, psychological, and emotional needs and development, general welfare, and any and all other matters pertaining to the best interest of the children. Neither parents shall have or exercise more or fewer legal custody parental rights, privileges, duties, or powers than the other, nor shall either parent have or exercise more or less legal custody parental authority than the other.

AUTHOR: Eric K. Johnson

Copyright Eric K. Johnson, Attorney at Law - Utah Family Law, LC
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.



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