Hersey, MI asked in Family Law for Utah

Q: If i file for visitation, do my children get a say in the matter?

I lost custody due to a very short-lived drug issue. I have been clean for over 3 years and completed all the requirements from the court. My ex husband wouldnt even let me talk to my kids until early this year. I got him to agree to let me see them every other weekend while he supervised. I want to file for visitation but he has filled their heads with so many lies about me that I'm afraid that they'll say they dont want the visitation. I know he'll fight me to get it. He wants to keep collecting child support from me. But i want to see my kids for more than an hour every 2 weeks. Will they get a say in the matter? They're 14 and 13.

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3 Lawyer Answers
Brian Craig
Brian Craig
Answered
  • Logan, UT
  • Licensed in Utah

A: This is left to the discretion of the trial judge. Utah Code § 30–3–10(2)(p) indicates that one relevant factor in the best interest of the child includes “the stated wishes and concerns of the child, taking into consideration the child's cognitive ability and emotional maturity.” A child’s preference may be considered, but the child’s preference is not controlling. The judge is not required to consider the child's wishes. The language in the statute states the court "may consider . . . the . . . wishes . . . of the child." Ultimately, the best interest of the child governs.

Mike Branum agrees with this answer

Mike Branum
Mike Branum
Answered
  • Saint George, UT
  • Licensed in Utah

A: Mr. Craig, in my opinion, is spot on. I believe any trial judge would likely award you more time; two hours supervised every two weeks is a very long way from equitable. If you can prove you have been clean for three years, had a good relationship with the children prior to the issues which caused you to lose custody, are able to exercise more time without disrupting their lives, and there are no other undisclosed problems; you should have a really high probability of getting more time with the children.

You may have to move forward in stages. You are much more likely to get more time if you do not ask for too much and you do not attempt to ask for enough to alter child support. You made a mistake. You should not have to pay for it forever, but it is remains a "cross for you to bear," so to speak. If you attempt to reduce your child support burden in your first request for more visitation, you risk the judge believing your efforts are financial and not because you actually want the time with your children. That could affect your chances of success. If you are able to get additional unsupervised time and rebuild your relationship with the children, they may ask for more time without having to go back to court.

Lane Wood
Lane Wood
PREMIUM
Answered
  • St. George, UT
  • Licensed in Utah

A: By statute, your children’s preferences are one of several factors that the court may consider. Once a child is 14, the court is required to give added weight to that child’s preference. That does not mean that the court will just do what the child wants.

The legislature has set forth minimum parent-time statutes with certain requirements when the court deviates down from that schedule.

If you have a court order for the supervised parent-time, the order should set forth goals and expectations to meet for unsupervised parent-time.

You should consider seeking local counsel to guide you through the complicated waters of a contested custody action

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