Custody, also known as “custodial responsibility,” means having the legal rights and responsibilities to care for and make decisions for your child.¹

There are two parts to custody:

1. Legal custody is the right to make major decisions about your child, including those related to your child’s:
   
   • education;
   • non-emergency healthcare; and
   • religion.²
2. Physical custody is the right to have your child live with you and be cared for by you.³   

Physical and legal custody rights can be divided between you and your child’s other parent in different ways. When one person has custody rights, that is called sole custody. The other parent will usually still have visits with the child, known as “parent-time.” When both parents share custody rights, that is called joint custody.⁴ To learn more about how joint custody works, see What is joint custody? 

¹ Utah Code § 81-9-101(2)
² Utah Code § 81-9-101(2), (5); see Utah Code § 81-9-203(11)(a)
³ Utah Code § 81-9-101(2), (6)
⁴ Utah Code § 81-9-101(5), (6)

In Utah, the time each parent can spend with a child according to a court order or parenting plan is called “parent-time.” Even if a parent doesn’t have custody, s/he may still get parent-time, whether it’s unsupervised (“uninterrupted”), supervised, or virtual.¹ When other relatives get a court order to spend time with a child, that’s called “visitation.”²

¹ See Utah Code § 81-9-101(13), (16), (17)
² Utah Code § 81-9-402(2)

There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some people make an informal agreement that works well for them. Some people fear that starting a court case will provoke the other parent. They may fear that the other parent will fight for more custody or parent-time than they are comfortable with.

Even if the other parent is uninvolved with the child now, s/he may become involved when a case is filed in court. Also, if the other parent fights for custody, the case may drag on for a long time. This can be emotionally and financially draining. When you are in court for custody, the judge will look into many aspects of your personal life. For example, the judge may look into your mental health, criminal record, substance abuse issues, and relationships. You may prefer to keep these things private.

On the other hand, getting a custody order from a court can set out what legal rights each of the parents has, which can be a benefit. A custody order can give you the legal rights to make decisions about your child and have your child live with you. Without an order, both parents may share these legal rights, even if one parent takes care of the child daily. However, if you file for custody, the other parent may also request these rights. If you and the other parent disagree, the judge will decide what custody arrangement is best for the child.

It’s wise to talk to a lawyer who can help you decide if filing for custody is best for you, depending on the facts of your situation. You can find legal help by going to our Utah Finding a Lawyer page.

To decide if giving custody and parent-time to an abusive parent is in the child’s best interests, the judge must consider:

• any evidence of domestic violence, physical abuse, or sexual abuse involving the child, you, or others in your home;
• whether the abuser purposely let the child see pornography or material harmful to minors; and
• whether allowing custody and parent-time with the abuser would put your child’s health or physical or psychological safety at risk.¹

Your child’s and your safety and well-being are most important.² If you have proof of domestic violence, a judge must consider it. If you have a cohabitant abuse protective order, a judge must take this as proof of real or likely harm to your child.³ 

However, the judge may also consider all the factors listed in How does a judge decide about custody and parent-time? as they relate to both parents. The judge will then decide what s/he believes is best for your child. This means that even if the abuser committed domestic violence, s/he could still get some form of custody or parent-time. Unless there is proof of real or likely harm to the child, Utah law usually assumes a child should have regular, meaningful contact with both parents, and both parents should be actively involved in raising a child.⁴

Custody cases involving domestic violence can be complicated, so it’s a good idea to talk to a Utah lawyer for advice and help with your case. Our Finding a Lawyer page has links to free and paid lawyers.

¹ Utah Code § 81-9-204(3)
² Utah Code § 81-9-204(10)(b)
³ Utah Code § 81-9-204(10)(a), (10)(c)
⁴ Utah Code § 81-9-204(11)

There are many factors that a judge must consider and additional factors that a judge may consider when deciding custody and parent-time. However, there are also factors that a judge is not supposed to consider or is not supposed to “hold against” a parent.

If you have a disability, a judge can’t deny you custody just because of your disability. S/he can consider your disability only if it “significantly or substantially” prevents you from providing for your child’s needs and you don’t have enough of a support system, money, or resources to help you.¹

In addition, when the judge is evaluating a parent’s past behavior or moral character, the judge can’t:

• treat the parent’s possession or use of legal medical marijuana differently than having any other prescription medication;
• discriminate against a parent for being a medical marijuana cardholder or working in the medical marijuana industry;² or
• discriminate against a parent based on whether they agree or disagree with the child’s:

• statement that his/her gender identity is different from his/her biological sex;
• practice of expressing a gender identity that’s different from his/her biological sex; or
• sexual orientation.³

¹ Utah Code § 81-9-204(6)
² Utah Code § 81-9-204(9)(a)
³ Utah Code § 81-9-204(9)(b); see Utah Code § 34A-5-102 for the legal definition of gender identity for this purpose

When deciding on joint legal custody, joint physical custody, or both, the judge must consider:

1. whether some form of joint custody would support the child’s needs and development;
2. if the parents can prioritize the child’s best interests and make shared decisions;
3. how well the parents co-parent, including whether they: 
   • communicate appropriately with each other;
   • encourage a loving relationship between the child and the other parent; and
   • allow the child to have “frequent and continuous contact” with the other parent, though if a parent limits contact to protect the child from domestic violence, abuse, or neglect, the judge may consider this;
4. whether both parents participated in raising the child before they separated or divorced;
5. how close the parents live to each other;
6. the child’s preference if s/he is old enough and able to express it;
7. the parents’ maturity, and their ability and willingness to shield the child from conflict;
8. how well the parents work together and make joint decisions, now and in the past; and
9. any other factors the judge believes are relevant.¹

These factors are in addition to the other “best interest” considerations listed in How does a judge decide about custody and parent-time?¹

¹ Utah Code § 81-9-205(2)

Before you file for custody, also called custodial responsibility, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and parent-time for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of shared or joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page. 

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.

The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, talk to a lawyer.

The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Utah Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order, also called a protective order and get temporary custody as part of the protective order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.

The Utah State Courts website provides:

• information on custody, parent time, relocation of a parent, and much more;
• factors that a custody evaluator will consider in Utah;
• information on the best interest factors that a judge will consider in custody cases; and
• links to court forms related to parentage and custody.

Utah Legal Services has information about custody and parentage, such as what types of custody there are in Utah, grandparent visitation rights, and more.