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REGULAR PARENT TIME GUIDE

Custody Explained:

Any parent time guide should start with an explanation of the different types of child custody. There are two types of custody: legal custody and physical custody.

Legal Custody: When a parent has “legal custody” they have the legal right to make important decisions regarding their child, including matters of education, healthcare, and religion. Utah law presumes it is in the best interests of a child for both parents to have legal custody. This is called “joint legal custody”. Courts will usually award the parents joint legal custody unless one parent is deemed unfit or if the court finds special circumstances.

Physical Custody: Physical custody is just what is sounds like. It is the right of a parent to have their child physically with them. There are two types of physical custody: "joint physical custody" and "sole physical custody".

Joint Custody: When both parents have the right to have their child with them during at least 110 overnights every year, they share “joint physical custody”.

Sole Custody: Don’t let the term “sole custody” mislead you. It doesn't mean that one parent has physical custody of the child 100% of the time and the other parent can't be with their child. It simply means that one parent has the child with them for less than 110 overnights every year. This parent is referred to as the “non-custodial parent”. The other parent is said to have sole physical custody.

Don’t be confused by the term “non-custodial parent”. Non-custodial parents still have overnights and physical custody of their child. The term non-custodial parent is just a naming convention used to make statutory custody schedules easier to understand, as we will explain later.

Parent Time: “Parent time” is the term used to refer to the days and overnights during which the non-custodial parent has a right to have physical custody of their child. This was formerly referred to as “visitation”.

Statutory Minimum Parent Time Schedule:

Utah Code Section 30-3-35 provides a minimum parent time schedule for parents of children 5 – 18 years of age. Courts can award a parent at least the parent time described in Section 30-3-35, unless the parent is deemed unfit or the court finds special circumstances. Aside from protecting the rights of parents by setting a minimum schedule, Section 30-3-35 provides a clearly defined and easy to follow schedule for courts to order. This minimum schedule is as follows:

  • The noncustodial parent has parent time with their child every other weekend from the time school gets out, or 6:00 p.m. (noncustodial parent’s choice), on Friday until 7:00 p.m. on Sunday. If school is not in session, the parent can start their parent time at 9:00 a.m. Note: The parents are always free to agree to a different time for the child custody exchange.
  • The noncustodial parent also gets parent time during one midweek day of their choosing from the time school gets out, or 5:30 p.m., until 8:30 p.m. If school is not in session, the parent can start their parent time at 9:00 a.m.
  • The noncustodial parent also gets parent time during one half of the holidays each year. This is referred to as the “Holiday Parent Time Schedule”. Please read our Holiday Parent Time Guide to better understand this schedule.

Accounting for the regular parent time described above and the included holiday parent time, this minimum schedule provides the non-custodial parent an average of 90 overnights per year. This number can vary between 89 and 93 overnight depending on whether the parent time begins on the first or second weekend of the year and whether it is an odd or an even year.

***Important Note: This is just a minimum schedule and either parent can be awarded any number of overnights greater than the minimum schedule, including 50/50 physical custody, and sole physical custody.***

We recommend reading through Section 30-3-35 as there are other minor points of which you should be aware to fully understand this minimum schedule.

For children younger than 5 years, Utah Code Section 30-3-35.5 provides a different minimum parent time schedule adjusted for the age of the child and other circumstances.

Extended Statutory Parent Time Schedule:

Recognizing the need for a statutorily described parent time schedule that includes more overnights for the noncustodial parent, the legislature enacted Utah Code Section 30-3-35.1 which builds on the minimum schedule by giving the noncustodial parent a midweek overnight and an extra overnight every other Sunday. The non-custodial parent also gets one half of the holidays every year just as with the minimum schedule. Read our Holiday Parent Time Guide for more details.

This extended schedule provides the non-custodial parent an average of 160 overnights per year. But wait? You might say. Doesn’t that mean the “non-custodial parent" would have joint physical custody? Yes, that is correct. A parent who has the number of overnights given to the “non-custodial parent” in this extended schedule does have joint custody. Remember when we said that the term “non-custodial parent” is just a naming convention used to make statutory custody schedules easier to understand. The legislature uses that term so anyone reading these statutes would know to whom a section is referring. Their decision avoided having to use terms like “Parent A” and “Parent B”.

Note: Section 30-3-35.1 states "This schedule is 145 overnights." However, that is not true, and it is unclear why the legislature included that statement in the statute. A careful tally of the number of overnights given to the "non-custodial parent" in this extended schedule, including regular and holiday parent time, adds up to an average of 160 overnights.

Equal Parent Time Statutory Schedule:

Recognizing the need for yet another statutorily described parent time schedule and one which provides parents equal parent time, the legislature enacted Utah Code Section 30-3-35.2. This schedule is often referred to as the “2-2-3 schedule”. One parent gets parent time starting Monday morning and ending Wednesday morning. The other parent gets parent time starting Wednesday morning and ending Friday morning. The parents alternate weekends. When school is in session, the parent whose parent time is ending drops the child off at school, and the other parent picks up the child after school. When school is not in session, the custody exchange occurs at 9:00 a.m., unless the parents agree otherwise.

Section 30-3-35.2 also gives each parent one half of the holidays described in Section 30-3-35. Read our Holiday Parent Time Guide for more details.

Relocation Statutory Parent Time Schedule:

Utah Code Section 30-3-37, referred to as the “relocation statute”, describes the minimum parent time schedule courts can award a parent if the parent moves 150 miles or more away from the residence of the other parent and the court determines it is not in the best interests of the child to move as well. Under these circumstances, and for children 5 – 18 years of age, Section 30-3-37 gives the relocating parent the following parent time:

  • Weekend Parent Time: The relocating parent/noncustodial parent has the option of exercising parent time for one weekend per month, at their own expense.
  • Holiday Parent Time: During odd numbered years, the relocating parent gets the Thanksgiving holiday beginning Wednesday until Sunday; and Spring break, if applicable, beginning the last day of school before the holiday until the day before school resumes. During even years, the relocating parents gets the entire winter school break period; and the Fall school break beginning the last day of school before the holiday until the day before school resumes.
  • Summer Parent Time: The relocating parent gets one half of the summer or off-track time for consecutive weeks. The child must be returned to the custodial parent’s home no later than seven days before school begins; however, this week will be counted when determining the amount of parent time to be divided between the parents for the summer.

For children younger than 5 years, Section 30-3-37 affords the court broad discretion to order a different parent time schedule, taking into account the age of the child and other factors.

Again, we recommend you read through Sections 30-3-35, 30-3-35.1, 30-3-35.2, 30-3-35.5 and 30-3-37 as there are other minor points of which you should be aware to fully understand these schedules.

Joshua R. Lucherini, Esq.

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For over 10 years, I have been helping clients achieve their goals. During that time, I have represented over 1,400 clients in the areas of personal injury, family law and criminal defense. I believe that the practice of law is a customer service business. The highest compliment a client can give me is to refer me their friends and family after a job well done.

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