Appeals court reverses order of joint custody of 43/57 percent to 50/50.

Mahanthi v. Nakkina, UT Ct. App. No. 20190750-CA (Filed June 17, 2021). Appeals Court reverses trial court order of 43% time with Father and 53% time with Mother and ordered equal time to each.  The evidence and findings supported an equal parent time award and the deviation to a lower percentage were based on unsubstantiated concerns and mere speculation about both parties future work demands.

Father and Mother divorced in August 2019. Father appeals the trial court’s custody award, challenging the court’s division of parent-time arguing that it should have been equal time, not the 57% of time to Mother and the 43% of time to Father that the court actually awarded.

Background:  Mother and Father married in India in December 2005. Shortly thereafter, the couple moved to the United States for Father’s employment. The couple lived in Salt Lake City, Utah, for a few months before relocating to Atlanta, Georgia. After becoming pregnant with their first child, Mother returned to India in 2006, where the child was born. Mother eventually returned to the United States but again travelled to India in 2010 while pregnant with the couple’s second child. Mother took the first child with her, and she remained in India for two and a half years with the two children. Father occasionally visited Mother and the children during their time in India but otherwise remained in the United States for his employment. Mother returned to the United States with the children in 2012 and joined Father who had moved back to Utah. The couple separated in 2016, and Mother filed for divorce shortly thereafter. From the time of their separation until the trial court finalized the divorce decree—nearly three years—Mother exercised temporary primary physical custody of the children while Father exercised his allotted statutory parent-time pursuant to Utah Code section 30-3-35. At trial, Mother testified that Father’s employment prevented him from spending quality time with their children. She explained that when the children were very young, Father regularly traveled for work and was away from home for days at a time. She further alleged that while she was in India with the children, Father’s visits were infrequent and he did not spend much time with the family even when he was present. She also testified that she was the primary caregiver for the children, performing tasks such as bathing and feeding them. In general, Mother claimed that Father was an absent father. Father largely denied Mother’s allegations. He testified that although he used to travel a lot for his employment and would occasionally stay up late working to accommodate his employer’s operations overseas, he participated in raising the children, performing all the tasks Mother claimed she managed alone. Father further testified that he quit his travelling job several years prior and that his new job did not interfere with his parent-time.

Trial Court Decision:  The trial court awarded the parties joint physical custody with a parent-time schedule close to equal time: Mother was awarded eight out of every fourteen days with the children and Father was awarded six out of every fourteen days (6/14 schedule). The court stated that the “6 out of 14 schedule provides an equitable balance and adequately considers all of the facts and, ultimately, is in the best interest of the children.” While the court acknowledged that many factors supported “equal time, or close to equal time, for both parents,” it reasoned that two related factors justified the less-than-equal division of parent-time for Father: (1) that the “family unit relies heavily on [Father’s] income” and (2) that “the demands of [Father’s] job are, and will likely always be, greater than any of the demands of [Mother’s] job.”  However, as noted below, the appeals court found that these two findings were unsubstantiated speculation on the part of the judge.

Appeals Court:  Father contends that the trial court erred by awarding him less than equal parent-time. When determining what is in the children’s best interest regarding parent-time, the decision “turns on numerous factors, each of which may vary in importance according to the facts in the particular case.” Generally, parent-time should be awarded “at a level consistent with all parties’ interests.” “Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child,” it is in the children’s best interest “to have frequent, meaningful, and continuing” time with each parent. In addition, each parent is entitled to “frequent, meaningful, and continuing access” with the children.  

Findings of fact are clearly erroneous if it can be shown that they are against the clear weight of evidence or that they induce a definite and firm conviction that a mistake has been made. Additionally, the trial court cannot act arbitrarily, or on supposition or conjecture as to facts upon which to justify its [parent-time] order.  

Father argues that the trial court’s order awarding him less-than-equal parent-time is not firmly anchored in the findings of fact because it is based on speculation, conjecture, or supposition. He asserts that there is no evidence to support the trial court’s finding that he cannot simultaneously maintain his employment and exercise equal parent-time. In contrast, Mother argues that the trial court sufficiently articulated its findings, justifying the 6/14 schedule, and that such a decision was within the trial court’s discretion. We agree with Father.

Although we are mindful of the court’s discretion and appreciate the careful way it articulated its findings in support of a 6/14 schedule, the court’s rationale is not supported by the evidence. In addressing the statutory factors for determining parent-time in section 30-3-10 of the Utah Code, the trial court found that the factors “favorably support a joint arrangement giving each parent equal, or close to equal, time with the [children].” For example, the court found it was “important for both parents to have a relationship” with the children and there “was certainly nothing to suggest that maximum time with either parent would be harmful to . . . either of the children.” Also, the court concluded that the children “have good relationships with each of their parents” and “there is no legitimate argument that the [children] would be endangered by broadening [Father’s] parent time from 5 to 6 or 7 days every two weeks.” But after highlighting the many reasons that justified an award of equal parent-time, the court ultimately rejected a 50/50 split for two related reasons. First, the court explained, “the reality is that this family unit relies heavily on [Father’s] income. It is imperative that he continue with his work.” “Second, the demands of [Father’s] job are, and will likely always be, greater than any of the demands of [Mother’s] job, whatever that may be.” Thus, the court awarded Father less than equal parent-time to “reduce [his] burden” and provide some “flexibility in his schedule to accommodate his work demands.” While the court meant well, its findings lack evidentiary support. The testimony at trial was that years ago, while the children were still very young, Father’s job required that he travel several nights every week and, occasionally, work late to accommodate his employer’s operations. But there was no evidence that Father’s work continued to be so demanding.

Instead, he testified that his schedule did not interfere with his parent-time, and the court even expressed its lack of concern about Father’s “availability as a parent going forward.” Further, although Mother opposed a 50/50 split for a variety of reasons, she made no complaints about his work schedule, and she expressed no concern over Father’s ability to accommodate both his job and his children. In sum, the trial court has broad discretion in awarding parent-time. But limiting Father’s parent-time based on unsubstantiated concerns about his work demands “does not follow from the findings stated.” We therefore reverse the trial court’s award of parent-time with instructions to award equal parenttime.

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