Tuesday, March 24, 2009

Custody: Joint-Custody Cannot Be Ordered Unless One of the Parties Submits a Parenting Plan

Trubetzkoy v. Trubetzkoy, 2009 UT App. 77, ---P.3d---, (Utah Court of Appeals, March 19, 2009).

Sergei Trubeztkoy was awarded joint-legal custody of the parties’ minor children, and a larger portion of the marital estate. Leslie Smith Trubetzkoy (Wife) appealed the trial court’s decisions as to custody, parent-time, the accounting of the business, and grounds for divorce. The Court of appeals affirmed the property distribution and the grounds for divorce, but reversed and remanded the trial court decision on custody.

The Court found that before a trial court can award joint-legal custody either or both parties must submit a proposed parenting plan. Without a parenting-plan the trial court cannot award joint-custody of the children. If a parenting plan has been submitted, then the court should then evaluate the best interests of the children. Addtionally, the court found that the statutory parent-time schedule is presumed to be in the best interests of the children. The burden is on the party attempting to deviate from the statute. Mother failed to justify the deviation. While the property distribution was disproportionate it was not disproportionate enough to be an abuse of discretion. Wife’s final request was for the Court to change the grounds of divorce from irreconcilable differences to adultery. The Court denied this request because it was based solely on Wife’s preference.

Full Decision available at http://www.utcourts.gov/opinions/appopin/trubetzkoy031909.pdf


Grant said...

Although the Court did not rule on it, the court seemed to indicate that there was no statutory presumption in favor of joint-custody. In other states there is a statutory presumption in favor of joint-custody. (e.g., District of Columbia, Florida, Idaho, Iowa, Kansas, Louisiana, Minnesota, Missouri, Montana, New Hampshire, New Mexico, and Texas, have laws favoring a presumption for joint custody)

Grant said...

In Footnote five the Court details how to argue that a parent should be awarded less than statutory parent-time.


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