Explanation of the New 50/50 Custody Statute in Utah

In May 2021, a new 50/50 custody law was passed.  The new law is called the “Equal parent-time schedule.”   Now, with this new statute, Utah divorce law and custody law provides three parent-time schedule options: (1) the standard minimum parent-time schedule that provides a parent with one 3 hour visit each week and every other weekend; (2) the 60/40 schedule; (3) this new 50/50 schedule.  This new statute provides that parents can pick what their 50/50 schedule should look like, or they can use the one the state provides which looks like this: Parent 1 gets Monday and Tuesday each week, Parent 2 gets Wednesday and Thursday each week, and they rotate parent-time from Friday to Sunday every other weekend.

What you need to know about this new law

States across the country have been establishing equal parent-time laws similar to this one in Utah.  These laws are the result of decades of research that show children do better emotionally, psychologically, mentally, and even physically if they have two good parents actively involved in their lives.  This new law provides that parents will be awarded an equal parent-time schedule if the court finds that the three conditions outlined below have been met.

First, the judge must find that an equal parent-time schedule is in the children’s best interests.  When determining what is in a child’s best interests, a judge can literally consider anything they deem relevant.  This means that there is no limit to what the judge may want to hear about, but here are a few ideas: how involved the parents were before the divorce, the child’s preference (if the child is old enough and mature enough to articulate that preference), the parent’s ability to work together for the benefit of the kids, the maturity of the parents, the ability of the parents to put their children’s interests above their own, the parent’s involvement in school and extracurricular activities, and the parent’s ability to facilitate and encourage a loving relationship between the children and the other parent.

Second, the court must find that each parent has been actively involved in the children’s lives.  In determining whether a parent has been actively involved, the court will look at things like the parent’s demonstrated responsibility in caring for the children, their involvement in child care and in the children’s schooling (homework included), whether the parent has been involved with the preparation of meals, if a parent has been a part of establishing and maintaining a routine for the children (i.e. bedtime and morning routines), and if the parent and the children have a good relationship.  These are just examples of things the court will consider, but the court can consider any factor that it thinks would be useful in making this determination.

Third, the court must determine that each parent can effectively facilitate the equal parent-time schedule.  Of crucial importance is the distance between parents—it’s obviously going to be much more difficult to exercise a 50/50 custody schedule if parents live 45 minutes away from each other as opposed to 5 minutes away from each other.  The judge will consider each parent’s ability to provide care for the children when they are out of school, the flexibility of the parent’s work schedule, any special mental or physical health needs for the parent or the child, the living situation (i.e. do the children have adequate space at each parent’s house), and whether the parent has historically been able to accommodate an involved relationship with the kids.  Again, these are just some examples, but the judge can consider any number of things.

Are there other things to consider that are not in the new law?

Yes, there are certainly other things to consider even though you won’t find them in the new statute.  Even if a parent can check all the boxes to get 50/50 custody, that doesn’t necessarily mean that 50/50 custody is best for the kids, or best for the parent.  In other words, just because 50/50 custody looks good on paper doesn’t mean it works well in practice.  Here are a few other things to think about:

  1. The first thing to consider is whether you actually want 50/50 custody. Every divorce attorney has heard a client express something like, “I want to be involved as much as possible, but I don’t think I’m going to be able to balance my demanding job and being a single parent during my time with the kids.”  It can be difficult to balance all the demands of life while also doing all that being a parent requires.
  2. The next thing to consider is that you know your children’s emotional and psychological needs better than anyone else, and that’s something the court can never fully evaluate.  So even if you want 50/50 custody, and even if you can prove 50/50 custody would be best for your kids on paper, how will your children actually respond to a 50/50 custody schedule?  I have heard several divorce and custody attorneys say things like, “If I ever got divorced, I would never ask for 50/50 custody.  I wouldn’t do that to my kids.”  What these attorneys are expressing is that for some children, having a main home where they spend a majority of their time can be stabilizing and provide consistency.  So, consider your children’s unique emotional and psychological needs.
  3. Are there future changes you anticipate that will necessitate a change in custody or parent-time?  Even though 50/50 custody might be doable now, is it doable for the foreseeable future?  Changing custody and parent-time can be quite disruptive to children’s lives, so one thing to think about is whether one of the parents might be moving, relocating for work, or have some change of circumstance down the road that might necessitate a new custody schedule.  If so, then it might be best for the children if the parents work out the least disruptive situation.

In short, consider your kids’ emotional and psychological needs and your own emotional and psychological needs.  These are the kinds of things that your judge simply cannot know, so it’s up to you to work for a healthy solution.

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