Most parents in Utah assume that when they separate or divorce, the court will start from a position of splitting custody evenly. That’s a reasonable assumption—shared parenting has become the social norm in many families, even when parents no longer live together. But it’s not the legal norm in Utah. And that’s a problem.
Utah law does not presume equal physical or legal custody when parents can’t agree. Instead, the court is tasked with determining custody based on the “best interest of the child” standard, without any baseline assumption of what that looks like. The result is a system where outcomes vary wildly, litigation becomes more adversarial than necessary, and too many children end up with limited contact with one parent—not because of neglect, abuse, or instability, but because there was no presumption of fairness to begin with.
It’s long, long past time for Utah to change that. Equal custody should be the default starting point in custody disputes–rebuttable*, of course, but presumptive.
*A rebuttable presumption of equal custody means the court would begin with the assumption that joint physical and legal custody is in the child’s best interest—but that assumption can be overturned if one parent presents credible evidence showing that equal custody wouldn’t work in their particular case.
What Is the Custody Presumption Under Utah Law?
Utah Code § 81-9-204, 205, and 206 governs how courts decide custody and parent-time. They instruct judges and commissioners to make custody decisions based on the child’s best interest, using a list of non-exhaustive factors that include each parent’s ability to parent, the child’s relationship with each parent, and (for older children) the child’s preferences.
But nowhere in the statute is there a presumption in favor of equal physical custody.
There is a presumption for joint legal custody. But there’s no presumption for joint physical custody at all. Utah’s “statutory minimum” (yes, it’s a real thing) (see § 81-9-302) does not assume anything close to equal time (more like a 70/30 split or worse).
So what happens in practice? One parent–often the one who has already had more day-to-day time with the kids because the other parent is (through no fault of his–and sometimes her–own) the primary wage earner, or the one who files first–ends up with an advantage. The other parent is left trying to prove he/she is worthy of more than alternating weekends and a dinner visit.
Why Unequal Custody Outcomes Are Common in Utah Divorce Cases
When there’s no presumption of equal custody, decisions depend heavily on which judge you draw and how he/she interprets the “best interest” standard. There’s no uniform baseline. One judge may lean toward equal time by default; another may lean toward a sole custody award by default. One may see a particular parent (or gender) as the “primary caregiver” and give that parent primary custody even if both parents are fit parents.
That kind of inconsistency undermines trust in the legal system. It also incentivizes parents to fight harder, not cooperate. If one parent believes he/she can “win” primary custody and relegate the other to visitor status, then she/she will often dig in his/her heels, even when joint custody would serve the child(ren) better.
And most importantly, children lose when equal custody is not given a fair chance. Kids benefit from meaningful relationships with both fit parents. The law should encourage that, not obstruct it.
Common Arguments Against Equal Custody—and Why They Fall Flat
Critics of equal custody presumptions often raise the same objections:
- “Every family is different.” True—but presumptions are rebuttable. A parent can still prove why equal custody wouldn’t work in their case.
- “Some parents are dangerous or neglectful.” Also true—but that’s precisely when the presumption would be rebutted. Courts don’t hand out equal custody to abusers or addicts.
- “A presumption ties the judge’s hands.” Not at all. Judges would still exercise discretion when the facts demand it.
In reality, the absence of a presumption leaves room for indulging bias, guesswork, apathy, and outdated assumptions about parenting roles. The absence of a presumption puts the burden on the wrong party, i.e., the parent seeking fairness, instead of the one seeking to limit the other’s role.
What Would a Rebuttable Presumption of Equal Custody Actually Do?
A rebuttable presumption of equal physical and legal custody would create a starting point, not a mandate. Courts would begin from the idea that both parents deserve equal time and equal responsibility. If one parent has solid evidence showing that equal custody would be harmful or impractical, the court could and should deviate from the equal custody presumption.
The key is this: the default would be fairness (to parents and children alike) and shared responsibility. Such a presumption would also:
- Reduce litigation by narrowing the range of disputed outcomes.
- Encourage settlement by setting a clear baseline.
- Reflect modern parenting realities, where both parents are often deeply involved.
Has Utah Tried to Pass Equal Custody Laws?
Utah has considered, but not enacted, reforms to implement a presumption of equal custody. A presumption of equal physical has been proposed in the legislature in years past but failed under pressure from advocacy groups concerned about loss of judicial discretion and, frankly, the status quo. It’s a shame. A rebuttable presumption wouldn’t force equal custody in every case. It would simply put both parents on equal footing unless the facts justify a departure.
Why Utah Should Presume Equal Parenting Time by Default
Equal custody rights are what every married parent enjoys, and that right need not end simply because of divorce. Maintaining one’s full custodial rights shouldn’t be a privilege one must beg for, it should be the starting point when two competent, loving parents separate.
Utah law isn’t there yet. Until it is, parents need to understand that the court doesn’t presume fairness. You have to prove your case. I believe that some day (sooner or later) Utah will catch up with what most families already know: Kids need both parents as much as possible. And both parents deserve a fair shot at parenting as much as possible.
Utah Family Law, LC | divorceutah.com | 801-466-9277