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My husband and I are getting a divorce. He wants 50/50 physical custody of our daughter.

Salt Lake City, UT |

He agreed that he would only take her overnight every other Saturday night. (There are issues with alcohol abuse and I want her overnight most of the time). Will any problems be created by me signing off on an agreement that gives 50/50 physical custody, if it is bound by the overnight limits we agreed upon?

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Attorney answers 3


Absolutely, if you sign an agreement that gives him 50/50 physical custody, that will be the order and you cant come in to court or try to enforce something else based on a verbal agreement. If he is having problems with drugs and alcohol, then he needs to get clean and sober first so he can be the best father possible for your and his daughter. Many times people in the throws of addiction are deceitful and lie, after all they often lie about how much they are abusing, so to sign such an agreement would be extremely detrimental to enforcing what it is you want to agree to. Bottom line, you should NOT do it.

I dont know of how I can give a more clear answer that is not only HELPFUL, but will probably also be the BEST ANSWER you can possibly receive.

Attorney Williams practices FAMILY LAW throughout the State of California and may be reached at (831) 233-3558 and offers free consultations. The response provided in this forum is not intended to create an attorney-client relationship. The information offered in this response is for general informational purposes only and should not be relied upon without further consultation with a legal professional after all relevant facts are disclosed and considered. DANIEL S. WILLIAMS, ESQ. LAW OFFICES OF DANIEL S. WILLIAMS 500 LIGHTHOUSE AVENUE, STE. A MONTEREY, CA 93940 (831) 233-3558 -- OFFICE (831) 233-3560 -- FAX



To clarify, my husband says he will agree to limited overnights IN WRITING, not just verbally. Will this work, if it is part of the decree?

Daniel Seth Williams

Daniel Seth Williams


If it is part of the decree, then leave it what you agreed to, its not making sense to have it otherwise.


Your best bet is to have in the court order that he gets her overnight every other Saturday night. Then tell him that when his alcoholism is under control and he is firmly in recovery that he is welcome to seek a custody modification. Then at that time you can decide if you are comfortable with 50/50 custody or if he will need to convince a judge that such a custody split is appropriate.

One thing you did not mention is the age of the child. That is important in child custody issues. For children under 5, 50/50 is possible, but at least here in Idaho it doesn't really happen. Certainly a dad can get three days a week of visitation but typically the mothers get more visitation since studies show it is important for a child to be with a mother during their younger years. Once a child has started school a 50/50 physical custody situation is more unlikely. Kids need stability once school starts, not being shuttled back and forth.

As a final note, please make sure you understand the difference between physical and legal custody. Legal custody has to do with decision-making power; it may be more reasonable for the father to have joint legal custody than joint physical custody.


custody in Utah is based on overnight visitation. You could give him all day every day and as long as you have the overnights, you are the parent that is determined to have primary custody. If you go before a judge you are likely to get primary custody with him having at least the statutory minimum visitation.

Get in touch with a local attorney, they should be able to help you with a free consultation whether they recommend that they act as a neutral third party, as your attorney in a mediation or litigate the issues.

good luck!

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