How to Divorce -- Child Custody

Determining Custody

  

      Child custody laws are complex and require expertise if there is a dispute over who should have custody of a child.   The court considers all relevant factors in applying child custody laws, some of which include:

•  The relationship of the child with his/her parents, siblings and any other person who may significantly affect the child; 
•  The mental and physical status of all individuals involved; 
•  Whether the parent is willing and can care for the child; 
•  How a parent respects the parental rights of the other parent; 
•  Each parent's adherence to a parenting time schedule; 
•  The suitability of parenting plans submitted by each party; 
•  How close the parent's live to each other or the child's school; and
•  The willingness and ability of each parent to cooperate.

In order to assist the court in applying child custody laws, the parties typically should engage the services of a child custody evaluator.  Costs for the child custody evaluator are usually split between the parties and a settlement conference is held with the evaluator.  Child custody evaluators generally cost between $3,000 to $10,000.   At the settlement conference with the child custody evaluator, the parties review the evaluator's  recommendations and determine whether the child custody issue can be settled.  If the issues is not settled, the parties proceed to a trial where the child custody evaluator may be called to testify and explain to the court the child custody evaluator's recommendations.

How to Divorce -- The Reasons

While there are many reasons to get a divorce, the Utah Code provides the following

legal justifications for getting a divorce:

•          impotency  
•         willful desertion for more than one year 
•         adultery 
•        willful neglect of food, shelter, clothing 
•          habitual drunkenness 
•         cruel treatment causing bodily harm or mental distress 
•          insanity 
•         conviction of a felony 
•          irreconcilable differences

Most divorces fall under irreconcilable differences unless the fault is egregious enough to warrant litigating for custody, alimony, or other financial purposes.  For example, if your spouse committed adultery, but does not have the ability to pay alimony or there are no children involved, then litigating over adultery may not be financially sound (although it may be enjoyable to have your spouse answer questions about the adultery).

How to Divorce -- Mediation

MEDIATION

Utah law requires that the parties in a contested case attend at least one session of mediation to try and resolve their differences. 

What is Mediation?

            Mediation is a dispute resolution method that allows the parties to tray and resolve their disputes rather than waiting for the judge to decide.  It is the process whereby the parties meet with a trained mediator who attempts to help the parties in reaching an agreement.  The mediator tries to facilitate an agreement, but does not force either party to agree.  In short, both parties should make a good-faith attempt to agree on issues of the marriage, including custodial arrangements or property division, for example.  Neither party, however, should feel that the “agreement” was forced upon him/her.  If it is not possible to reach an agreement, another form of resolution, such as trial, is used.

Who is the Mediator?

            Most mediators are attorneys who have significant experience in divorce matters.  Other mediators have either social work or psychology training.  Many are highly skilled professionals with substantial experience in the field.  The parties typically proffer several mediators to be used and try to agree on a mediator.  Mediators charge different rates for their services and this may factor in the decision.  A typical rate is between $100 to $200 per hour with the parties splitting the costs.  Some mediators will require you to sign a document outlining the basic rules of their mediation. 

What is the Length of Mediation?

            Mediation typically occurs in one meeting generally lasting from two to four hours.  Most mediators schedule morning (9:00 a.m.) and afternoon sessions (1:00 p.m.).  The duration depends upon the progress, the cooperative spirit (or lack of it) exhibited by the parties, the desires of the parties to keep trying, and many other factors. 

 The Attorney's Role in Mediation

            The attorney will typically meet with you before the mediation session starts to discuss legal rights and strategy.  Most attorney's attend the mediation with the client, but the client can choose not to have the attorney present.  If your attorney is not there, you should provide him/her with reports and updates from you as the mediation progresses.  This helps him/her to continue to advise you of the legal ramifications of any agreements you seek to reach. DO NOT SIGN ANYTHING AT THE MEDIATION WITHOUT HAVING SPOKEN TO YOUR ATTORNEY FIRST.

           

            As with every issue and factor in a divorce, each case progresses differently through mediation and each requires specialized and sophisticated responses to the process.  

How to Divorce -- Dealing with your spouse

            Divorce can bring out the worst in people.  At times self-interest can justify behaviors that otherwise would be intolerable.  However, self-protection requires a new set of guidelines for dealing with your legal adversary:

      

1. Use politeness. 
2. Be skeptical.  Most of what is said can be meant to deceive you. 
3. Don't reveal too much. 
4. Walk away from arguments or conflict.
5. Expect your spouse to dislike your lawyer and attempt to undermine his/her influence. 
6.  Don’t enter into private negotiations without your lawyer's knowledge and advice. 
7. DO NOT, UNDER ANY CIRCUMSTANCES, KEEP ANY FILES IN CONNECTION WITH YOUR CASE AT ANY LOCATION WHERE YOUR SPOUSE COULD SEIZE AND OBTAIN THEM, THUS LEARNING YOUR ENTIRE CASE STRATEGY. 
8. Do not be intimidated by your spouse if an ultimatum or deadline is given you to accept or reject an offer or proposition.  One does not negotiate “under the gun” as to time.  

How to Divorce -- Temporary Orders

             Often in a divorce immediate relief is necessary.  This relief may include requests for restraining orders, temporary support, control of assets, custody and visitation orders, the right to exclusive possession of a home, and/or attorney’s fees.  In such cases, your can file a motion for temporary orders concurrently with the initial petition or the response.  Most hearings for temporary orders are set within 30 days from when the motion is filed.   

            The need for support is one of the most common reasons for a temporary hearing.  Utah requires that an Affidavit of Financial Declaration be submitted with the motion for temporary order for support.  This will require gathering financial information and supporting documents regarding your assets, monthly expenditures and monthly income.  A form child support worksheet that will also be submitted to the court, if child support is being sought.  At the temporary support hearing, each spouse presents evidence of his or her needs, obligations, and expenses. The court will then make recommendations for temporary orders.  The orders are temporary and remain in effect until modified by agreement, the court, or until the case is finalized.

            It is thus important to prove facts about the parties’ income at this early stage.  Therefore, you should preserve and deliver to your attorney such things as pay stubs and tax returns so that they may have as complete a financial picture as possible.