Utah courts are tasked with making custody and parent-time decisions based on the best interest of the child. But you cannot know what schedule truly serves a child’s best interest if you never test the parents’ proposed schedules in real life. Unless a proposed schedule is clearly harmful on its face, Utah courts should allow trial periods of each parent’s proposed custody structure before locking a permanent order in place. Guesswork and “intuition” is not evidence. The children deserve better, and doing better isn’t that hard.
Test the Competing Proposed Schedules Before You Declare One “Best”
In Utah, courts must decide child custody and parent-time according to the best interest of the child—see Utah Code § 81-9-202. If that sounds straightforward, it’s not. Utah courts frequently issue temporary custody and parent-time orders early in the divorce or child custody case, and usually do so after only a hearing based on proffers by each side,[1] lawyer arguments that make selective citation to the relevant facts and law, and assumptions (often grossly unjustified)—not after seeing how the children actually fare under a given schedule.
But no judge, no GAL, no evaluator, and no lawyer can reliably predict which custody schedule will work best for a child without seeing it tried in real life. And Utah law does not require courts to pretend otherwise. It requires courts to evaluate evidence—not to engage and indulge in speculation and snap judgments. The only way to get evidence about what schedule or schedules work(s) best for the entire family is to try it/them.
Unless a parent proposes something that is inherently deleterious[2]—e.g., entrusting a child with a parent who has a history of child abuse or imposing travel distances or exchanges on a that are burdensome—there is nothing to lose and everything to gain from a trial run of each parent’s proposed schedule.
Utah Law Actually Supports This Approach
- Utah Code § 81-9-202 and the associated best-interest considerations focus heavily on function—quality of the parent-child relationship, stability, emotional security, and continuity of care.
- Utah Code § 81-9-204 allows courts to consider how parenting time affects the child’s well-being.
- Utah Code § 81-9-305 (Equal parent time schedule) addresses how a child’s voice may be considered; a child’s actual response to different schedules is highly relevant data.
None of those standards can be meaningfully evaluated in the abstract. They require observation over a sufficient period of time.
“But the Child Is Accustomed to a Schedule Already!”
Let’s address one of the most common—and most flimsy—arguments heard in Utah custody cases: “We can’t change the schedule because it will disrupt the child’s routine.”
This is known as the status quo argument. It only holds water if the child has a long-standing routine deeply tied to the child’s identity and stability. Very young children do not have that. Even older children adapt well when the transition is well-structured, responsive to their needs, and both parents support them.
Let’s break this down by age:
Infants (0–18 months)
Infants need consistent caregiving and predictable feeding/sleep routines.
But infants also form strong attachment bonds with more than one parent—as long as they see both parents frequently. Short, regular, alternating care works well. Trial schedules are particularly feasible here.
Toddlers (1–4 years)
This is where many courts default to the “status quo” excuse.
If the parents separated when the child was a toddler—as in the common scenario where separation occurred when the child was two and the child is now three—there simply hasn’t been enough time for the child to become “accustomed” to a rigid custody pattern. Toddlers are still developing routines and can adapt well to shared parenting if the schedule is consistent.
Both parents work? All the more reason to test which schedule supports the smoothest logistics and emotional continuity. Guessing is malpractice.
Pre-Teens (9–12 years)
Structure matters, but predictability does not mean inflexibility. These kids can handle week-on/week-off, 2-2-5-5, or similar schedules with ease when both parents support the transition.
Teens (13+)
Utah law already allows more weight for teen preference. But preference means something when it is informed—i.e., when the teen has experienced the schedules being considered and when a coherent, persuasive argument for or against a particular proposed schedule can be made.
And courts, parents, and lawyers need to be honest about something else: children’s schedules change all the time in intact families too, yet we do not treat those changes as catastrophic.
Families relocate for work. Parents change jobs and work schedules. A parent goes back to school or enters the workforce after the children are born. A new sibling is born. A grandparent moves in. A child starts preschool, or shifts from preschool to kindergarten, or from one school to another. Sports seasons come and go. Bedtimes shift.
Life is full of changes, and children adapt—usually with very little drama and usually without the change constituting a net negative in their lives—as long as the adults provide stability, structure, support, and reassurance. Yet once parents separate, some will suddenly claim that any adjustment to the parenting schedule will “disrupt the child’s sense of security.” Nonsense. The law should not indulge that double standard.
Change that affects or can affect custody and parent-time schedules is not inherently harmful. What matters is how the parents handle the change, not whether the change occurs.
Good Custody and Parent-time Schedules Are Not One-Time Decisions
Another reality the courts (and parents) need to acknowledge is that custody and parent-time schedules often need to change as children grow. A schedule that works well for a two-year-old is rarely the same schedule that fits a seven-year-old, or a twelve-year-old, or a sixteen-year-old.
Children develop socially, emotionally, academically, and physically. Their sleep patterns, school demands, friendships, extracurricular activities, and personal autonomy all evolve. “Best interest” is not determined once for all time once in a child’s life; the custody and parent-time schedule must remain responsive to children’s real-world needs as they mature. The court’s job is not to preserve a static schedule; it is to support a dynamic, developing human being.
Stability Comes from Parenting, Not the Calendar
When parents are together, families routinely adapt to these developmental changes without anyone suggesting that such adjustments are destabilizing or harmful. A child who starts kindergarten may shift to an earlier bedtime. A child joining a sports team may require different pick-up and drop-off routines. A teenager may need more flexibility to manage school, work, or social commitments. None of this is treated as “disruption” in intact families. The same logic applies post-separation: the presence of two households does not convert normal developmental transitions into crises. The key to stability is not keeping the schedule frozen, it is parents who are consistently supportive, communicative, and attuned to the child’s needs. The calendar should serve the child, not the other way around.
Why Courts Resist Testing Schedules
- Convenience: Trial periods require monitoring, structure, and follow-up hearings.
- Status Quo Bias: Courts often default to “whatever is happening now” simply because it is easier.
- Fear of Being Wrong: Many judges would rather make a permanent decision quickly than risk showing uncertainty.
- Docket Pressure: Testing schedules takes time.
But convenience for the system does not equal best interest of the child. A decision that affects a child’s entire childhood deserves sufficient evidence (and the work required to obtain it), not assumptions.
The Principle is Simple: Test. Observe. Analyze. Decide.
If one parent’s or neither parent’s proposed schedule is going to work (or work better than another), that will become clear in a well-tested, well-analyzed trial phase. If one schedule genuinely harms the child’s emotional or developmental well-being, that will also become clear.
A trial period generates facts. Facts enable sound judgment.
Without testing the schedules, the court is not making a best-interest determination.
It is making a best guess determination. Parents and children both deserve better than that.
Evidence beats intuition. Every time.
When courts lock in custody orders without first testing the proposed parenting schedules, they are deciding the most important part of a child’s post-divorce life based on guesswork, habit, or convenience—not sufficient evidence. Utah law favors the child’s best interest. The only way to identify the schedule that truly serves that best interest is to test the schedules in real life before making the final ruling.
When One Parent Sabotages a Working Schedule
There is another problem courts must be willing to confront: sometimes a schedule would work well, but one parent sabotages it. Not because the schedule is bad for the child, but because the parent cannot tolerate the child having a strong relationship with the other parent. This can stem from resentment, insecurity, jealousy, control, untreated mental illness, or simple spite. A functioning shared-parenting schedule gets labeled “confusing,” “stressful,” or “destabilizing” not because the child is struggling, but because one parent is actively creating struggle. And there’s always the tried and true “the children aren’t safe/are being neglected/abused at [parent’] house” false accusation to throw a monkey wrench in things. Whatever the cause, the result is the same: the child is used as a pawn by the sabotaging parent.
In these situations, the disruption comes not from the schedule—it comes from the parent who is fighting the schedule. When a parent refuses to support transitions, badmouths the other parent to the child, manufactures crises, sabotages school communication, etc., the harm is self-inflicted. Utah’s best-interest standard is not a measure of which parent is the loudest or the most oppositional; it evaluates which parent fosters the child’s relationship with both parents. See Utah Code § 81-9-204(4)(c) (evaluating each parent’s willingness and ability “to appropriately communicate with the other parent,”
“to encourage the sharing of love and affection,” and to allow the child “frequent and continuous contact between the child and the other parent”). A parent who undermines a stable and workable joint schedule is not protecting the child. They are protecting their own ego, to the child’s detriment. And courts should say so plainly, with citation to the evidence.
What Courts Should Do When One Parent Sabotages a Good Schedule
If a custody or parent-time schedule appears workable and beneficial to the child, but one parent is actively undermining it, the solution is not to abandon the schedule. Doing so rewards the sabotage. It teaches the child that conflict gets results and teaches the sabotaging parent that obstruction works. Utah’s best-interest framework does not require courts to indulge that behavior. In fact, it expressly allows the court to weigh each parent’s willingness to support the child’s relationship with the other parent. SeeUtah Code § 81-9-204(4)(c).
When sabotage is the problem, the court should:
- State the finding plainly on the record, citing to the evidence in the record for the finding. A clear judicial finding that one parent is obstructing the child’s relationship with the other is not only accurate—it helps ensure accountability and a basis for enforcement.
- Order the schedule that best supports the child, not the parent who is making the most noise. The child should not lose access to a functional parenting structure simply because one parent dislikes it, undermines it, and comes up with lame excuses to oppose it.
- Impose structured, enforceable transition protocols to discourage conflict opportunities and thus minimize conflict. This can include curbside exchanges, school-based exchanges, third-party drop-off/pick-up, documenting communication between parents by requiring it to be in writing.
- Warn the sabotaging parent that further interference will result in automatic adverse consequences. This matters. A warning alone changes behavior more often than people think—especially when the court backs its orders with enforcement.
- If the interference continues, adjust custody—not as punishment, but because the child needs to be raised by a parent who can support their relationship with both parents. Utah law already recognizes this principle. A parent’s demonstrated inability to foster the child’s bond with the other parent is a valid basis for altering custody where necessary to protect the child emotionally.
- Consider therapy if actually needed, not as a CYA[3] default. Not every case needs therapy. Some cases need a firm order and accountability—not more professionals telling everyone to “communicate better.” Many judges order therapy to look caring and thorough without being either, so don’t be afraid to challenge a therapy order if it is just an afterthought.
Do not tolerate or reward sabotage. The court must avoid the trap of thinking: “If I pick the schedule the obstructing parent likes better, the conflict will stop.” It will not; the conflict never came from the schedule. It came from the parent’s refusal to support the child’s relationship with the other parent.
The Work the Courts Need to Do and That It Must Actually Do
Custody decisions should be based on evidence, not assumptions, convenience, or the emotional pressure of whoever objects the loudest. The only honest way to determine what truly serves a child’s best interest is to test the proposed parenting schedules in real life, observe how the child responds, and evaluate each parent’s willingness to support the child’s relationship with the other parent. Children adapt to change when the adults behave like adults. Children thrive when both parents are allowed and expected to show up, be steady, and share the work of raising them. And when one parent tries to sabotage that stability, the court’s responsibility is not to reward the obstruction—it is to protect the child’s relationship with both parents and to order the schedule that actually works. The child’s life is not a stage for parental insecurity. Best interest means evidence, accountability, and the courage to insist on what is true, not what is convenient.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Proffer (in court): A proffer occurs when an attorney tells the judge what a witness would say if that witness were called to testify, instead of having the witness actually take the stand and give live, sworn testimony. The court hears a summary, not the evidence itself. Proffers are faster, but they are not a substitute for real testimony, cross-examination, or a judge’s ability to evaluate credibility.
[2] Deleterious: causing harm or damage: “divorce is assumed to have deleterious effects on children.”
[3] If you do not know what this means, I’d prefer you look it up yourself.