Physical Custody is determined by how many nights a child resides with a parent each year–we call this “overnights.” This is different than parent time, which refers to the amount of time a parent spends with their children.
When determining physical custody and parenting arrangements, a court will look first and foremost to what we call “the best interest of the child.” This essentially means that the court wants what’s best for the child’s overall well-being. In making this determination, the court will consider a number of factors, including:
- Past conduct of the parents.
- Parents’ work schedules and availability to the child.
- Which parent was the primary caregiver of the child before the divorce.
- The preference of the child if the child is of sufficient age and capacity to make such a decision.
- Moral standards of the parents.
- Which parent is most likely to act in the best interest of the child.
- Which parent is most likely to allow the other, non-custodial parent (the parent who does not have custody) to have contact with the child.
- The extent of bonding between the parent and child (depth, quality, and nature of their relationship).
Types of Physical Custody
A court can order several different types of physical custody: (1) primary physical custody; (2) joint physical custody; (3) split physical custody. Each of these is described below.
Primary Physical Custody (Sometimes Called Sole Physical Custody)
If you are awarded primary physical custody, that means the court has ordered that your child will spend at least 255 overnights with you every year, but it could be more. At a minimum, the other parent will usually be granted overnights with your child for at least Friday and Saturday every other weekend. Many individuals mistakenly believe that primary physical custody means that the other parent doesn’t get to see the children at all. That is almost never the case. However, it is true that if you are awarded primary physical custody the other parent will not see the child nearly as often as you do.
Joint Physical Custody
If you are awarded joint physical custody, that means that the court has ordered that your child will spend at least 111 overnights with each parent every year. It is becoming more common to see joint physical custody awarded based on Utah’s new Joint Physical Custody Statute (click here to see it). Under this statute, one parent is awarded 220 overnights with the child and the other parent is awarded 145 overnights. Typically, these 145 overnights are accomplished by giving the other parent overnights every Wednesday; every other weekend on Friday, Saturday, and Sunday; for a few weeks in the summer; and on some holidays. However, there are numerous ways to accomplish a joint physical custody situation between two parents.
Before awarding joint physical custody, the court will look to several factors, including:
- If the noncustodial parent has been actively involved in the child’s life (i.e. demonstrate responsibility in caring for the child, involvement in day care, involvement in the child’s school and extracurricular activities, helping with homework, involvement in after-school and bedtime routines, bonding with the child);
- If the parties are able to communicate effectively regarding the child, or the noncustodial parent has a plan to accomplish effective communications regarding the child;
- Whether the noncustodial parent has the ability to facilitate more parent-time with the child (i.e. available to be with the child after school, flexibility of work schedules, ability to implement a flexible schedule for the child, provide appropriate playtime, physical residence of the parent);
- Whether joint physical custody will be in the best interest of the child;
- The ability of the parents to prioritize the welfare of the child;
- The ability of the parents to work together to make decisions for the child;
- Whether the parents are capable of nurturing a healthy relationship between the child and the other parent;
- The extent to which both parents shared responsibilities in raising the child before the divorce;
- The proximity of the parents’ homes to each other;
- The preference of the child (so long as the child is of a sufficient age to reason through the situation and state a preference as to joint physical or primary physical custody);
- The maturity of the parents;
- The ability of the parents to protect the child from conflict that may arise between the parents; and
- Any history of child abuse, spousal abuse, or kidnapping.
Joint physical custody also means that both parents contribute to the expenses of the child.
On rare occasions a court will enter an order of split custody. Split custody means that one parent has primary physical custody of one child, and the other parent has primary physical custody of another child. In order for split custody to be awarded, a court must find that it is in the best interest of both children to be split apart and live with a different parent.