Legal Question in Family Law in Utah
Temporary custody/contested joint physical
My husband and his ex-wife divorced a year ago, the temporary order put him as NCP/joint legal, his ex is the kid�s primary physical residence. The custody suit is still on going. My husband gets 128/year overnights, which in our state constitutes joint physical. In addition to the every weekend and vacation time he gets, we've been keeping the kids overnight (at their Mom's request so she can go out) 1-2 times a week for several months now. Also, we babysit the kids late into the evening (after they've fallen asleep) other times during the week. So, sometimes their mother only spends 1 or 2 evenings a week with them.
His ex wife is fighting for sole physical custody despite the fact that she leaves the children with us so much. We think she is going for sole physical because she very much wants to move out of state with the kids. I've been told that judges will not grant joint physical if one parent contests it. She is contesting it verbally... but her actions are proving that there already is a working joint physical relationship. When the judge makes the final decision, will he consider this and grant my husband joint physical being that they already have it in practice?
Thanks.
1 Answer from Attorneys
Re: Temporary custody/contested joint physical
In custody situations the judge makes a decision based on what the best interests of the children are. You should keep detailed records of the time that you have the children in your home. You should also have your attorney petition the court for a mandatory home evaluation, both of your home and the ex's home, if not already done. If you have had one, but it is not recent, you may want a second one.
The judge has a lot of discretion. You must present your home as the preferrable residence for the benefit of the children, and identify more positive reasons for them to live with you and with the ex. The judge will want to see stability, clean & safe environment, good local connections, such as friends, school, church etc. Good history of parental involvment, and provision for the needs of the children. The opinion of the children is also important if they are not too young, but you must avoid the temptation to manipulate them.
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