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Family Law

Charlie Sheen is in the news again, not for his own zany antics or declarations of “winning,” but for coming to the defense of his ex-wife, Brooke Mueller, who was recently charged with possession of cocaine with intent to distribute and misdemeanor assault. After a bitter divorce and custody battle over their twin sons, Mr. Sheen expressed no interest in seeking sole physical custody of their sons in the wake of Ms. Mueller’s arrest. Apparently, he feels that Ms. Mueller is still a good mother, despite her drug addiction issues, and that he did not believe it was in his sons’ best interest for him to pursue a change of custody.

That is mighty chivalrous of Mr. Sheen. But if he were interested in pursuing sole custody of the children and this case were heard by a Utah court, it would certainly make for an interesting inquiry, considering his own recent run-ins with drug and alcohol abuse, among other issues. One might think that Ms. Mueller’s recent arrest and her ongoing struggle with drug abuse would guarantee a win for Charlie Sheen, but there are other issues which also factor in to a custody determination. Where an order of custody is already in place, and the other party wishes to modify that order, the courts in Utah require a threshold question be answered before it will even consider the custody factors: Is there are material and substantial change in circumstances since the controlling custody order was entered. Then, the court will determine whether a change in custody would be an improvement for or in the best interests of the child. The courts will then consider the following factors (which include some special factors if the request is to change from an existing joint legal or joint physical custody arrangement):

(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;

(j) the past conduct and demonstrated moral standards of each of the parties;

(k) which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent; and

(l) any other factors the court finds relevant.

Thankfully, for the children’s sake, Mr. Sheen and Ms. Mueller seem to be able to work and play well together as co-parents, and further custody litigation is not in their immediate future. When co-parents can cooperate and be supportive of each other and their children in the face of difficult circumstances such as those facing Ms. Mueller — the children always win.

Custody modifications are extremely complex; therefore, you should always consult an attorney with significant experience in litigating child custody modifications.

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