Custody

Your children are the most important people in the world. Don’t let hard feelings between you and your spouse hurt them too. A good lawyer can help you get the time you deserve with your children and make fair financial arrangements.

person filling out child custody formThere are two types of custody that need to be decided in the case of a divorce or separation: physical and legal. Physical custody is the determination of where the child will live. This can fall into one of three situations:

  • Sole Custody: The child or children live full time with one parent.
  • Joint Custody: The child or children live part time with one parent and part with the other. The exact percentages vary depending on the court’s decision, but joint custody requires at least 30% with each parent.
  • Split Custody: Each child’s living arrangement is considered individually. One child may live with the mother and another with the father.

Legal custody concerns the rights, privileges, duties, and powers of each parent regarding education, health care, and other major decisions for the children. It is possible for the legal custody arrangement to be divided differently than the physical custody arrangement.

In addition to custody decisions, the court will determine parent time (visitation) schedules and child support obligations. Child support is calculated using statutory tables based on the income of each parent and the amount of time spent in each household. It is unusual for the courts to order a child support amount different than this statutory calculation.

Under Utah family law, once custody decisions have been made, they are extremely difficult, and in many cases impossible, to alter. It generally requires a large amount of indisputable evidence to show that the other parent is unfit. The courts do their best to do what is in the best interest of the child or children, and changing custody arrangements is generally viewed as an undue burden on those children. Because of this, it’s important you do it correctly the first time.

Any of these decisions can be overwhelming and difficult to navigate. Having an experienced Utah family law attorney on your side can make all the difference in the world when it comes to working out a fair and appropriate agreement.

Child Support

Utah State law states that every mother and father shall support their children. The Child Support laws designates three categories of support, 1) Base child support, 2) medical expenses and 3) work related child care costs. The amount someone may receive or be required to pay is calculated differently for each category. This post will focus on how Base child support is assessed and calculated.

An order requiring the payment of child support may arise one of two ways, either through the State of Utah’s Office of Recovery Services, which has the legal authority to establish a child support order if requested by to do so by a parent and there are no other child support orders in place, or by the State of Utah’s District Court if there is a pending Divorce or Custody case involving custody of minor children. If a child support amount imposed by the Office of Recovery Services is incorrect there is a potential to correct it by having the District Court issue a child support order. The Office of Recovery Services must abide by any child support order issued by the District Court.

The Base child support amount is determined by a math formula that looks to the type of custody (Sole Custody, Joint Custody or Split Custody) ordered, the parents’ adjusted gross monthly incomes, the number of minor children, whether there are any prior orders ordering a parent to pay alimony or child support and, when there is joint physical custody, the number of overnights per year the children spend with each parent.

Gross monthly income is considered income earned from any source including salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “non-means-tested” government programs. Some forms of income are excluded from being used in calculating child support, such as cash assistance provided under the Family Employment Program, benefits received under a housing subsidy program, the Job Training Partnership Act, Supplemental Security Income, Social Security Disability Insurance, Medicaid, SNAP benefits, or General Assistance, and other similar means-tested welfare benefits received by a parent.

The income used to calculate child support should be based upon one full time, 40 hour per week job. Income from overtime or a second job may be used in calculating child support only if during the time prior to the original support order, the parent normally and consistently worked more than 40 hours at the parent’s job.

There are times when calculating child support where a parent might be “imputed” an income, which means, in cases where a parent is not working, or earning less income than their ability to earn, the District Court will set what it feels the unemployed or underemployed parent can earn if they were fully employed, as the gross monthly income for calculating child support. Except in special circumstances, if a parent has no recent work history or a parent’s occupation is unknown, income will be imputed at the federal minimum wage for a 40-hour work week.

An existing child support order may be modified within the first three years after it has been issued if a parent’s income goes up or down by 30% from the original income amount used in calculating child support. If it has been more than three years since a child support order was issued or last modified, either parent may request the amount of support ordered be recalculated upon showing either parent’s income is 10% more or less than the income used to calculate the existing child support order.

When a parent who is ordered to pay child support has the children with them for an extended period of time the law states the amount of child support to be paid shall be reduced by 50% for each child for time periods during which the child is with the non-custodial parent by order of the court or by written agreement of the parties for at least 25 of any 30 consecutive days of extended parent-time or reduced by 25% for each child for time periods during which the child is with the non-custodial parent by order of the court, or by written agreement of the parties for at least 12 of any 30 consecutive days of extended parent-time.

Although rarely used, the parent who is ordered to pay child support may request the parent who is receiving the child support to provide an accounting of how the money is spent for the children. The parent requesting such an accounting must be current on all due and owing child support payments.

The obligation to support a child exists until a child becomes 18 years of age or graduates from high school during the child’s normal and expected year of graduation, whichever occurs later, or until the child dies, marries, becomes a member of the armed forces of the United States, or is emancipated.

If you have any questions regarding child support please contact the office of Rulon T. Burton and Associates to speak directly with an experienced family law attorney.