Child Custody and Parent Time
The issues of custody and parent time (which used to be called visitation) are the most important, and frequently the most difficult, issues the judge has to decide in a divorce case.
The judge’s preference is for the spouses to reach an agreement on this matter. The judges presume that the parents are in the best position to create a schedule for the children which will meet the unique circumstances of the children and the parents.
Child Custody Evaluation Process
If the spouses are unable to reach an agreement on custody and parent time, the judge will probably order them to have a custody evaluation performed. This involves hiring a psychologist or social worker to evaluate both parents and the children and make a recommendation to the judge on custody and parent time.
The evaluator makes his or her recommendation based on a number of factors, including: 1) the level of bonding between each parent and the children, 2) which parent provided the most care for the children during the marriage, 3) the preferences of older children, 4) each parent’s character and fitness, and 5) the willingness of each parent to facilitate and encourage a relationship between the children and the other parent.
The evaluator almost always makes at least one visit to each home as part of the evaluation. The evaluator may also have the parents complete some psychological testing and character inventories.
At a minimum, each parent should have a chance to have parent time with the children every other weekend, one weeknight each week, four weeks during the summer and half of the holidays during the year. However, the current consensus among custody evaluators is that the children need a strong bond with both parents, and this minimum parent-time schedule is not enough time with both parents to form that strong bond. Most custody evaluators will recommend that both parents get more than the standard parent-time with the children.
Child support is closely tied to custody, because support goes with the children. Utah has adopted child support guidelines. In order to apply the guidelines, each spouse is required to provide his or her income to the judge. With that information, the guidelines produce an amount of support, based on the income of the parties, the number of children involved and how much time the children will spend with each parent. The judge presumes that the amount of support produced by the guidelines is correct, and most judges are reluctant to depart from the guidelines.
Child Custody and Parent Time Family Matters in Ogden, Utah
Introduction to Divorce
To a certain extent, we are sorry that you are reading this book. If you are reading this book, it means that you, or maybe someone close to you, is seriously considering divorce. Or maybe you are already divorced, and you are considering whether you need to go back to court to get something about your divorce changed. Or maybe you have a child with someone you were never married to, and you need to get a court’s help in resolving issues between you and the other parent.
Whatever your actual circumstances are, if you are reading this book, it means that you are having some kind of problem in your family life–and that those problems are serious enough that you are considering hiring a lawyer and resolving the problems through the courts.
Although there may be other reasons to read this book, most people who will read this book will be those who are considering divorce. The decision to get a divorce is never an easy one. Most people do not even begin to consider that possibility until they have tried every other option they can think of.
You should realize that getting a divorce is not a magic bullet that will solve your problems. It is better described as the process of trading in one set of problems for another. If you have children, you will still have to interact with your former spouse on a frequent basis–probably for the rest of your life. Although child support may end when the last child graduates from high school, you will still run into your ex at various family functions which involve your children.
There are alternatives to divorce, especially marriage counseling. That kind of counseling can help you to work through problems without the pain and long-term consequences of divorce. Of course, every situation is different and you have to make the decision on whether to end your marriage.
We wrote this book for two main reasons. The first is to give people who are considering a divorce some idea of what the process will be if they decide to go forward. We also wanted to give those same people some idea of what issues are in a divorce and how those issues are likely to be resolved.
We have purposely tried to make this book easy to read and follow. That means that we have not included legal references in the book. You’ll just have to trust us that there are legal references (mostly court cases decided by the Utah courts and statutes) for everything we have put in here.
In order to make the book easy to read, we have also tried to avoid using legal jargon or making the book sound like a court brief. We can write that way when it’s appropriate, but our intended audience for this book is people who need information and don’t have a legal background.
If you decide to read this book, you need to know that we practice in Utah and so we know the law of Utah. As a result, the issues we examine and the advice we give are for people who are getting a divorce or facing some other legal issue in Utah. Although the broad outlines of family law are generally the same from state to state, the devil is in the details. And the details vary widely from state to state.
Finally, since we are lawyers, we have to say that our intention in writing this book is not to give legal advice. The circumstances of your situation will vary from the examples we use in the book.
If you need legal advice for your specific situation, you need to contact an attorney who can get the details of your situation and give you advice tailored to your individual circumstances.
What is an annulment?
An annulment is a declaration that your marriage is invalid because of some problem that existed at the time of your marriage. Once the court enters an annulment decree, you are treated as though you were never married. Only two types of marriage can be annulled: void marriages and voidable marriages.
A marriage is void if either one of the parties has another living spouse, the parties are too closely related (typical statutes say that parties cannot be related by blood), and where one of the parties is under the statutory age (usually 18) at the time of the marriage and did not get parental approval or approval of the court.
Voidable Marriages (Common Law Grounds)
A marriage is voidable and subject to annulment based on the common law grounds of:
(1) fraudulent inducement to marry;
(2) breach of antenuptial agreement;
(3) mistake in identity; and
(4) sexual incapacity.
Children of an annulled marriage are deemed to be legitimate. The court may make temporary and final orders relating to children and their custody, alimony, and property distribution.
Common Law Marriage
When a man and a woman live together as man and wife, but never go through a marriage ceremony, it is not unusual when they break up for one of the parties to claim that there has been a common law marriage. Although Utah recognizes common law marriage, in Utah, the phrase “common-law marriage” is misleading. The phrase suggests that this form of marriage has been established by common-law or judicial processes. In fact, in Utah common-law marriage is governed by a statute, and the party claiming a common-law marriage must show that he or she has complied with all of the requirements of the statute.
Common-law marriages in Utah are governed by the terms of Utah Code Ann. §30-1-4.5.
That statute reads:
(1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman who:
(a) are of legal age and capable of giving consent;
(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;
(c) have cohabited;
(d) mutually assume marital rights, duties, and obligations; and
(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.
(2) The determination or establishment of a marriage under this section must occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.
Establishing Common Law Marriage in Utah
A party attempting to establish a common-law marriage must establish all of the elements listed in §30-1-4.5(1). A failure to establish even one of these elements is fatal to the claim.
Pursuant to §30-1-4.5(1)(e), one of the elements that the proponent of a common-law marriage must prove is that both the husband and the wife held themselves out as husband and wife. The two parties need to tell other people that they are husband and wife and fill out official documents as husband and wife. The party claiming a common-law marriage will have to provide substantial evidence that the parties have held themselves out as husband and wife.
Utah Common Law Case: Hansen v. Hansen
One of the issues that is most often litigated is whether the parties have a general and uniform reputation. This issue was discussed at length in Hansen v. Hansen, 958 P.2d 931 (Utah App. 1998). In Hansen, the parties had been married and then divorced. Following the divorce, the parties began living together again. After they began living together again, they went on a number of trips with friends and family. During those trips, they did not refer to each other as husband and wife. The trial court also found that the parties’ friends believed that they were living together, but not married. After the parties broke up, the man filed a divorce action. His divorce action was based on his claim that, between the time of the first divorce and the final breakup, the parties had entered into a common-law marriage. Based in part on the evidence that the parties’ friends did not believe they were married, the trial court found that there was no marriage. The man appealed.
On appeal, the Utah Court of Appeals stated:
Section 30-1-4.5(1)(e) states that a person claiming marriage under the statute must establish the couple has “acquired a uniform and general reputation as husband and wife.” . . . [A] “partial or divided” reputation of marriage is insufficient.
* * * * *
The fact that the parties’ closest friends did not consider the two married, in conjunction with the fact that Mr. Hansen and Ms. Hansen were not consistent in holding themselves out as married to the rest of the world, negates the establishment–under any standard of proof–of the statutory requirement that the couple “acquired a uniform and general reputation as husband and wife.”
Most claims of common law marriages in Utah fail, because the burden of proving a common-law marriage is so high. It is much easier to just get married than to claim a common law marriage after an intimate relationship breaks up.
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