State Laws and Legislation

Utah Custody and Visitation Law

Utah courts have used a parent’s sexual orientation to deny, restrict or modify custody and visitation. There are no reported or published opinions dealing with transgender parents or same-sex co-parents.

Custody and Visitation for Gay, Lesbian and Bisexual Parents
Utah law states: “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. In determining any form of custody, the court shall consider the best interests of the child and, among other factors the court finds relevant, the following: (i) the past conduct and demonstrated moral standards of each of the parties; (ii) which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the non-custodial parent. …

“The court may order joint legal custody or joint physical custody or both if the parents have filed a parenting plan … and it determines that joint legal custody or joint physical custody or both is in the best interest of the child. In determining whether the best interest of a child will be served by ordering joint legal or physical 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 or physical 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, including the sharing of love, affection and contact 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 or physical custody; (g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents; (h) the past and present ability of the parents to cooperate with each other and make decisions jointly; (i) any history of, or potential for, child abuse, spouse abuse or kidnapping; and (j) any other factors the court finds relevant.

“The determination of the best interest of the child shall be by a preponderance of the evidence.”

In a 1996 case, Tucker v. Tucker, the Utah Supreme Court reversed an appellate court’s ruling that awarded custody to a lesbian mother. The court’s reasoning was based on “numerous … factors, including parental bonding, custodial stability, moral fitness, emotional stability, time availability and religious compatibility.” The court agreed with the trial court’s opinion that the child was more closely bonded to the father and that the father would “serve as a better moral example” because of the mother’s “cohabitation.”

In a 1980 case, Kallas v. Kallas, the Supreme Court of Utah ruled that the trial court had abused its discretion by not admitting evidence of the “mother’s homosexual practices.” The high court went on to say that the testimony that the mother had used drugs and was involved with same-sex relationships was persuasive, such that the father would regain full custody of the children. Addressing the mother’s sexual orientation specifically, the court stated: “Most importantly, the psychological impact on the children resulting from more extended visits with a mother who may, as a role model, at least to some extent cause serious conflict in the minds of the children concerning basic lifestyles.”

In a 1978 case, Gribble v. Gribble, the Supreme Court of Utah interpreted state law to allow a stepfather to stand in loco parentis in order to be considered a parent for the purposes of custody and visitation. The court ruled that state law indicated “the legislative intent to protect the relationships which affect the child … and to be sensitive to the fact that relationships beyond those of parent-child may be important enough to protect vis-à-vis visitation.” The Supreme Court of Utah has since struck down the requirement that a near or non-relative must stand in loco parentis to be considered a parent for purposes of custody and visitation.

Citations: UTAH CODE ANN. § 30-3-10; UTAH ANN. CODE § 30-3-10.2; Tucker v. Tucker, 910 P.2d 1209 (Utah 1996); Kallas v. Kallas, 614 P.2d 641 (Utah 1980); Gribble v. Gribble, 583 P.2d 64 (Utah 1978); State in Interest of J.W.F. 799 P.2d 710 (Utah 1990).


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Updated: Fri, December 23, 2005 - 12:00:44