Editor Note: minimal parenting time guidelines not consistent with meaningful, frequent and continuing access as indicated below
30-3-10. Custody of children in case of separation or divorce -- Custody consideration.
(1) If a husband and wife having minor children are separated, or their marriage is declared void or dissolved, the court shall make an order for the future care and custody of the minor children as it considers appropriate.
(a) In determining custody, the court shall consider the best interests of the child and the past conduct and demonstrated moral standards of each of the parties.
(b) The children may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the children be heard and there is no other reasonable method to present their testimony.
(c) The court may inquire of the children and take into consideration the children's desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children's custody or parent-time otherwise. The desires of a child 16 years of age or older shall be given added weight, but is not the single controlling factor.
(d) Interviews with the children may be conducted by the judge in camera only with the prior consent of the parties.
(2) In awarding custody, the court shall consider, among other factors the court finds relevant, which parent is most likely to act in the best interests of the child, including allowing the child frequent and continuing contact with the noncustodial parent as the court finds appropriate.
(3) If the court finds that one parent does not desire custody of the child, or has attempted to permanently relinquish custody to a third party, it shall take that evidence into consideration in determining whether to award custody to the other parent.
30-3-10.1. Joint legal custody defined. In this chapter, "joint legal custody":
(1) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;
(2) may include an award of exclusive authority by the court to one parent to make specific decisions;
(3) does not affect the physical custody of the child except as specified in the order of joint legal custody;
(4) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and
(5) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.
30-3-10.2. Joint legal or physical custody order -- Factors for court determination -- Public assistance.
(1) The court may order joint legal custody or joint physical custody or both if the parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child.
(2) In determining whether the best interest of a child will be served by ordering joint legal custody, the court shall consider the following factors:
(a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody;
(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;
(c) whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent;
(d) whether both parents participated in raising the child before the divorce;
(e) the geographical proximity of the homes of the parents;
(f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody;
(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents; and
(h) any other factors the court finds relevant.
(3) The determination of the best interest of the child shall be by a preponderance of the evidence.
30-3-10.3. Terms of joint legal custody order.
(1) Unless the court orders otherwise, before a final order of joint legal custody is entered both parties shall attend the mandatory course for divorcing parents, as provided in Section 30-3-11.3, and present a certificate of completion from the course to the court.
(2) An order of joint legal custody shall provide terms the court determines appropriate, which may include specifying:
(a) either the county of residence of the child, until altered by further order of the court, or the custodian who has the sole legal right to determine the residence of the child;
(b) that the parents shall exchange information concerning the health, education, and welfare of the child, and where possible, confer before making decisions concerning any of these areas;
(c) the rights and duties of each parent regarding the child's present and future physical care, support, and education;
(d) provisions to minimize disruption of the child's attendance at school and other activities, his daily routine, and his association with friends; and
(e) as necessary, the remaining parental rights, privileges, duties, and powers to be exercised by the parents solely, concurrently, or jointly.
(3) The court shall, where possible, include in the order the terms of the parenting plan provided in accordance with Section 30-3-10.8.
(4) Any parental rights not specifically addressed by the court order may be exercised by the parent having physical custody of the child the majority of the time.
(5) (a) The appointment of joint legal custodians does not impair or limit the authority of the court to order support of the child, including payments by one custodian to the other.
(b) An order of joint legal custody, in itself, is not grounds for modifying a support order.
(c) The agreement shall contain a dispute resolution procedure the parties agree to use before seeking enforcement or modification of the terms and conditions of the order of joint legal custody through litigation, except in emergency situations requiring ex parte orders to protect the child.
30-3-32. Parent-time -- Intent -- Policy -- Definitions.
(1) It is the intent of the Legislature to promote parent-time at a level consistent with all parties' interests.
(2) Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:
(a) it is in the best interests of the child of divorcing, divorced, or adjudicated parents to have frequent, meaningful, and continuing access to each parent following separation or divorce;
(b) each divorcing, separating, or adjudicated parent is entitled to and responsible for frequent, meaningful, and continuing access with his child consistent with the child's best interests; and
(c) it is in the best interests of the child to have both parents actively involved in parenting the child.
(3) For purposes of Sections 30-3-32 through 30-3-37:
(a) "Child" means the child or children of divorcing, separating, or adjudicated parents.
(b) "Christmas school vacation" means the time period beginning on the evening the child gets out of school for the Christmas or winter school break until the evening before the child returns to school, except for Christmas Eve, Christmas Day, and New Year's Day.
(c) "Extended parent-time" means a period of parent-time other than a weekend, holiday as provided in Subsections 30-3-35(2)(f) and (2)(g), religious holidays as provided in Subsections 30-3-33(4) and (16), and "Christmas school vacation."
30-3-34. Best interests -- Rebuttable presumption.
(1) If the parties are unable to agree on a parent-time schedule, the court may establish a parent-time schedule consistent with the best interests of the child.
(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child. The parent-time schedule shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon any of the following criteria: