Custody

Before you start a custody case, you may consider making an out-of-court agreement with the other parent. People often must be flexible about custody and visitation to benefit their child. People who fight for sole custody may be in court for months or even years. And they may still end up with some form of joint custody after a settlement or trial.

However, sometimes a person needs to fight for sole custody because they can’t agree with the other parent. You may need to file for custody if the other parent is keeping the child from you or you fear for the child’s well-being or safety. 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 people.

To read more about some issues you may want to think about if you are starting a case against an abuser, go to the Safety Issues section of our Court System Basics page. You can also watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process. The videos discuss the different types of custody and visitation, how judges decide, child support, and moving out of state with your child. 

If you decide to file for custody in court, the process usually looks something like this:

1. File for custody

The legal paperwork that starts a custody case is called a petition. You may file your custody petition in family court or a court of a different name that hears custody cases. You will usually file in the county where the child lives. Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary order when you file your petition.

The exact petition you file may depend on whether or not you are married.

• If you are married and getting divorced from your child’s other parent, you can usually file for custody in the divorce case.
• If you are married but not filing for divorce, or if you aren’t married to your child’s other parent, you can file a separate custody petition. However, if you aren’t married and the father hasn’t been legally recognized- by signing an acknowledgment of paternity or through a child support or paternity case- you usually need to establish paternity first. To do this, you can file a petition to start a paternity case.

The custody petition forms 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 can’t advise or represent you. The specific steps for filing for custody will depend on your exact case and the procedures in your county. It’s a good idea to get help from a Utah lawyer to make sure you have all 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.

When you file your petition for custody, the clerk will tell you when to return to court for further action. After you file, the papers will need to be served to the other parent.

2. Prepare for the custody process

Custody cases are complicated, so you may want to get a lawyer. If you can hire a lawyer, you can use this list of questions as a guide when deciding who to hire. If you are representing yourself, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section.

You can prepare for your case by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest” factors that a judge in your state looks at to figure out what’s best for your child. To see the factors in Utah, go to How does a judge decide about custody and parent-time? The judge may issue temporary custody and parent-time orders while the case is going on.

Keep in mind that custody court cases often take a long time. Going through this process can be emotionally and financially draining. 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.

3. Prepare for trial

There will usually be one or more hearings, including a trial, if you and the other parent cannot reach an agreement by yourselves, with the help of your lawyers, or through mediation. At the trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. After the trial, the judge will decide what s/he thinks is best for your child and issue a final custody and parent-time order.

If you are a victim or survivor of domestic violence, you can ask the judge to include protections in your temporary and final custody and parent-time orders. For example, you can ask the judge to order the following:

• All communication between the parents must be in writing.
• The parents can only communicate with each other about the child.
• Another person, like a friend or relative who gets along with both parents, should be there when the parents exchange the child or should do the drop-off and pick-up.

4. Options if you lose the custody case

If you disagree with the judge’s order, there are a couple of legal actions that you might be able to take right away, such as filing a motion for reconsideration or an appeal.

1. A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
2. An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.

You might also be able to ask the judge to change your order in the future, by filing a motion or petition to change (modify) the order. However, usually, this can only be done if there is a “substantial change of circumstances.” Here are a few examples of events that might be considered substantial changes in circumstances:

• The other parent gets sent to jail or charged with child abuse or neglect.
• You move or the other parent moves to another state.
• Your child’s needs change in a big way.