Utah Courts Cannot Simply Assume That a Parent’s Job Prevents Equal Parent-Time

What Nakkina v. Mahanthi means for working parents, 50/50 custody, and evidence in Utah child custody cases
By Jeff D. Rifleman, Rifleman Law & Mediation

For years, one of the easiest arguments to make in a child custody case has been something along these lines:

“He works too much.”

“Her job is too demanding.”

“He earns most of the family’s income, so he needs to concentrate on work.”

“She has a professional career, so she cannot realistically exercise equal parent-time.”

Those arguments may sound reasonable. Sometimes they may even be true.

But that is not enough.

The Utah Court of Appeals made an important distinction in Nakkina v. Mahanthi, 2021 UT App 111: a court may consider employment when determining custody and parent-time, but it cannot convert an assumption about a parent’s job into a factual finding without evidence supporting it.

That distinction matters.

A parent’s work schedule is a legitimate issue in a Utah child custody and parent-time case. But the question is not whether a parent has an important job, earns substantial income, travels occasionally, works long hours, owns a business, or has historically had demanding employment.

The question is much more specific:

What does the evidence show about how that parent’s current employment actually affects his or her ability to exercise the proposed parent-time schedule?

In Nakkina, the trial court crossed that line. The Utah Court of Appeals reversed it.

The Case: Nakkina v. Mahanthi

Nakkina v. Mahanthi arose from a Utah divorce involving two children. The parties separated in 2016, and the mother exercised temporary primary physical custody for nearly three years while the divorce proceeded.

At trial, the parties presented substantially different accounts of the father’s historical involvement with the children.

The mother testified that the father’s employment had previously required significant travel and that he had historically been absent for substantial periods of time. She described herself as the primary caregiver and characterized the father as having been comparatively uninvolved.

The father disagreed.

More importantly for the eventual appellate decision, the father testified that the employment circumstances had changed. He had left the traveling job several years earlier, and his current employment did not interfere with his ability to exercise parent-time.

The district court ultimately awarded joint physical custody, but not equal parent-time. The mother received eight days out of every fourteen, while the father received six.

That may appear to be a relatively small difference.

The Utah Court of Appeals nevertheless reversed.

The reason is important to anyone litigating child custody in Utah: the evidence did not support the reason the district court gave for denying equal time.

The full amended appellate decision can be reviewed at Nakkina v. Mahanthi, 2021 UT App 111.

Finding No. 1: Courts Have Broad Discretion — But Discretion Is Not Permission to Guess

This is probably the most important principle in the case.

Utah district courts have substantial discretion when deciding custody and parent-time. That is necessary because every family is different. A schedule that works perfectly for one family may be completely impractical for another.

But judicial discretion still has boundaries.

The Court of Appeals explained that a parent-time award must be firmly anchored in sufficiently detailed factual findings. Those findings must demonstrate a logical process connecting the evidence to the court’s ultimate decision.

The appellate court relied on longstanding Utah precedent explaining that a trial court cannot base a parent-time determination on supposition or conjecture.

That is the point that deserves attention.

A court cannot simply look at a parent’s occupation and decide what that occupation probably means.

A judge cannot reasonably substitute:

a job title for evidence of a work schedule;
past travel for evidence of current travel;
income level for evidence of parental availability;
professional responsibility for evidence of parental absence; or
a demanding career for proof that the parent cannot exercise 50/50 custody.

Employment can matter. But the effect of employment must be demonstrated by evidence.

Finding No. 2: Historical Work Demands Are Not Automatically Evidence of Present Parenting Availability

The factual distinction in Nakkina is particularly important.

There was evidence that the father’s former employment had once been demanding. Years earlier, his job required regular travel and occasionally required him to work late because of overseas business operations.

The district court apparently allowed that history to influence its view of the father’s future availability.

But the father had changed jobs.

There was no evidence that his current employment continued to impose the same demands.

That distinction was critical.

A court determining current custody cannot simply freeze a parent’s employment circumstances at some earlier point in the marriage.

People change jobs.

People change shifts.

Employees begin working remotely.

Business owners restructure their schedules.

Parents reduce travel.

Parents arrange childcare.

Parents organize their work obligations around school schedules and exchange times.

What matters is the evidence concerning the circumstances relevant to the custody order the court is actually entering.

This same principle can become important in post-divorce litigation. A genuine change in employment circumstances may affect an existing custody arrangement, but a party seeking a change should be prepared to prove the actual circumstances rather than relying upon general assertions. Our discussion of Utah divorce and custody modifications involving employment changes addresses that issue in the modification context.

Finding No. 3: The Trial Court Found the Father Was Available — Then Reduced His Time Because It Assumed He Would Not Be

This is where the district court’s reasoning became internally inconsistent.

The district court made numerous findings supporting equal, or nearly equal, parent-time.

Among other things, the court found that:

both parents should have substantial relationships with the children;
the children had good relationships with both parents;
there was no evidence suggesting that maximum time with either parent would harm the children; and
there was no legitimate argument that expanding the father’s parent-time would endanger the children.

The district court also expressed that it was not concerned about the father’s availability as a parent going forward.

Those findings matter because a court’s ultimate custody order must logically follow from its factual findings.

Here, the district court essentially found that the father could parent the children, that additional time would not harm them, and that availability was not a concern.

It nevertheless reduced his parent-time because it predicted that his work would remain more demanding than the mother’s work.

The Court of Appeals held that the conclusion did not follow from the evidence.

That is an important appellate constraint on custody discretion.

Finding No. 4: A Court Cannot Reduce Parent-Time to “Help” a Parent With His or Her Career Without Evidence That Help Is Needed

The district court’s reasoning was not hostile toward the father.

In some ways, it was the opposite.

The court believed the family relied heavily upon the father’s income. It therefore wanted him to continue working and apparently believed that giving him slightly less parent-time would reduce his burden and provide additional flexibility.

The Court of Appeals even recognized that the district court meant well.

But good intentions do not replace evidence.

This is one of the more significant parts of Nakkina.

A court cannot protect a working parent from responsibilities that the parent has not asked the court to remove.

Nor should a court assume that parenthood and professional success are mutually exclusive.

A parent may decide that exercising equal custody is more important than maximizing work availability. That parent may arrange employment accordingly. The custody court does not get to make that personal decision for the parent merely because it believes a reduced schedule would be easier.

If evidence establishes that a particular schedule is actually incompatible with a parent’s employment, that is different.

But there must be evidence.

Finding No. 5: What the Other Parent Did Not Say Became Important

Another interesting fact in Nakkina is what the mother did not argue.

She opposed equal parent-time for several reasons.

But according to the Court of Appeals, she did not complain that the father’s current work schedule prevented him from caring for the children. She did not express concern about his ability to accommodate both his employment and the children.

That matters because the district court’s employment concern was not even supported by the parent who was opposing 50/50 custody.

The evidence therefore did not establish that the proposed schedule conflicted with his actual employment.

Yet employment became the deciding reason for denying equal time.

The Court of Appeals would not allow that evidentiary gap to stand.

Finding No. 6: The Remedy Was Not Merely a Remand for Better Findings — The Court Ordered Equal Parent-Time

The result in Nakkina is also significant.

The Court of Appeals did not merely tell the district court to write more detailed findings explaining the 6/14 schedule.

It reversed the parent-time ruling and instructed the district court to award equal parent-time.

Why?

Because the trial court had already made the relevant findings.

Those findings favored equal or nearly equal custody, and the employment concern that prevented a 50/50 award lacked evidentiary support.

Once that unsupported rationale was removed, there was no remaining factual basis identified by the district court for denying equal time.

This is an important distinction for lawyers analyzing custody findings.

The issue is not simply whether the judge wrote enough words.

The findings must actually support the result.

Finding No. 7: Nakkina Does Not Create an Automatic Right to 50/50 Custody

Nakkina should not be overstated.

The case does not hold that every working parent is entitled to 50/50 custody.

It does not hold that employment is irrelevant.

It does not prevent courts from considering work schedules.

And it does not eliminate Utah’s best-interest analysis.

The narrower rule is more defensible and, in my view, more important:

If a court is going to use employment as a reason to restrict a parent’s custody or parent-time, there needs to be evidence demonstrating how that employment actually affects the proposed parenting arrangement.

That is an evidence rule disguised as a custody case.

And that is precisely why it matters.

How Nakkina Fits With Utah’s Current Custody Statutes

The statutes cited in Nakkina were contained in former Title 30. Utah has since reorganized its domestic-relations statutes into Title 81 of the Utah Code.

The basic principle remains.

Under current Utah Code § 81-9-204, a court deciding custody and parent-time must determine the child’s best interests based upon a preponderance of the evidence.

The statute also continues Utah’s policy that, absent proof of real harm or substantiated potential harm, children should have frequent, meaningful, and continuing access to both parents and both parents should remain actively involved in parenting their children.

For a broader explanation of that analysis, see how Utah courts determine the best interests of a child in custody cases.

Utah Code § 81-9-206 likewise requires the court to determine a parent-time schedule by a preponderance of the evidence.

And Utah’s equal parent-time statute, Utah Code § 81-9-305, directly addresses the very subject discussed in Nakkina. When evaluating whether parents can effectively facilitate an equal parent-time schedule, the statute directs the court to consider factors including the flexibility of each parent’s employment or other schedule.

Notice what the statute says.

It directs the court to consider employment flexibility.

It does not say that the parent who works more hours gets less custody.

It does not say that the higher earner receives less parent-time.

It does not say that a professional career is inconsistent with joint physical custody.

It requires an individualized analysis.

That is entirely consistent with Nakkina.

What Evidence Should a Working Parent Present?

If employment is likely to become an issue in a contested Utah custody case, I would not leave the subject vague.

A parent seeking substantial or equal parent-time should be prepared to establish exactly how the proposed schedule works.

Depending upon the case, useful evidence may include:

actual work hours;
remote-work arrangements;
flexibility to arrive late or leave early;
ability to work from home while children are present;
travel frequency;
historical travel compared with current travel;
school drop-off and pickup availability;
childcare arrangements;
family members available for occasional assistance;
work calendars;
employer policies;
paid-time-off flexibility;
evidence of consistently exercising temporary parent-time;
school attendance records;
participation in medical appointments;
extracurricular involvement; and
communications demonstrating that work has not interfered with parenting responsibilities.

A parent defending against a claim of being “too busy” should not merely respond, “I can make it work.”

Show the court how it already works.

Documentation often separates an allegation from evidence. For that reason, I routinely emphasize the importance of maintaining contemporaneous records during custody litigation.

What Evidence Should the Parent Opposing Equal Time Present?

The same evidentiary requirement works both ways.

If one parent genuinely believes that the other parent’s employment prevents an equal schedule, that concern should be demonstrated through evidence rather than generalized criticism.

Relevant evidence might include a documented pattern of:

missed exchanges;
frequent cancellations;
children routinely being left with third parties;
unavoidable overnight travel;
inability to transport children to school;
repeated late pickups;
failure to attend medical or educational appointments because of work;
requests that the other parent routinely cover scheduled parent-time; or
an employment schedule that objectively conflicts with the proposed parenting plan.

That type of evidence permits a court to make a factual determination.

A statement that someone has “a demanding career” does not.

The Primary-Caregiver Argument Also Has Limits

Nakkina is also relevant to another common custody argument: one parent historically performed more day-to-day caregiving because the other parent worked outside the home.

Historical caregiving is relevant under Utah law.

But history is not necessarily destiny.

A marriage is an economic and parenting partnership. Families frequently divide responsibilities. One parent may work longer hours while the other performs more weekday caregiving. That arrangement may have been mutually beneficial during the marriage.

Divorce changes the structure.

The fact that one parent historically worked more does not automatically establish that the same division of responsibilities must continue after separation.

The court must evaluate the actual parenting abilities, schedules, relationships, and circumstances existing when custody is determined.

A High Income Should Not Become a Custody Penalty

There is another uncomfortable aspect of the district court’s reasoning in Nakkina.

The court emphasized that the family depended heavily on the father’s income.

But if taken too far, that reasoning creates a strange incentive.

The more financially successful a parent becomes, the easier it becomes to argue that the parent should receive less time with the children because the family needs that parent to keep earning money.

That cannot become a substitute for a best-interest analysis.

Financial responsibility is important. So is parenting.

The two are not mutually exclusive.

A parent should not effectively be penalized in a custody determination merely because that parent is the primary wage earner.

Likewise, a lower-earning parent should not be presumed more available simply because that parent’s income is lower.

Evidence matters more than assumptions.

The Same Rule Should Apply to Mothers and Fathers

Although Nakkina involved a father whose employment was used as a reason to reduce his time, the legal principle is gender-neutral.

A professional mother should not lose parent-time merely because the court assumes her career will interfere with parenting.

A father should not lose parent-time merely because he historically served as the primary wage earner.

A self-employed parent should not be presumed unavailable simply because business ownership sometimes requires long hours.

Nor should a remote worker automatically be presumed available at every moment simply because that person works from home.

The court should determine what the evidence actually establishes.

What Nakkina Means in a Temporary Orders Hearing

The reasoning is particularly useful in temporary-orders litigation.

Temporary custody orders are often entered early in a divorce when the court has limited time and incomplete information.

That makes broad assumptions tempting.

One parent may argue:

“He has always worked full-time, so the children should primarily remain with me.”

That is not enough.

The relevant questions are more concrete:

What are his actual hours?
Who takes the children to school?
Who picks them up?
Can he work remotely?
Does he travel?
How often?
Has he consistently exercised the temporary schedule?
Who handles homework?
Who attends activities?
What childcare is actually necessary?

The proposed schedule should be tested against evidence rather than assumptions.

What Nakkina Means for 50/50 Custody in Utah

Utah law now expressly recognizes an equal parent-time schedule.

But 50/50 custody is still not automatic in every case.

The court evaluates the children’s best interests, each parent’s involvement, each parent’s ability to facilitate the schedule, geography, schooling, parenting history, safety considerations, cooperation, and other relevant circumstances.

For parents considering an equal arrangement, the practical lesson from Nakkina is straightforward:

Do not merely argue that 50/50 custody is fair. Prove that it works.

That means presenting a parenting plan that addresses school, exchanges, transportation, holidays, extracurricular activities, medical care, childcare, and employment schedules.

Parents in Lehi facing these issues can review our discussion of child custody and parenting plans in Lehi. Similar principles apply throughout Utah County and the Wasatch Front.

The Larger Lesson: Custody Decisions Must Be Based on Evidence, Not Judicial Intuition

This is ultimately why I think Nakkina matters.

Family-court judges hear hundreds of cases. They naturally develop experience with common parenting arrangements, employment situations, and custody disputes.

Experience is valuable.

But judicial experience cannot become evidence.

A judge may reasonably believe that a particular career is demanding. The judge may even be correct in the abstract.

But the court still must determine whether this parent’s job, under this parent’s actual circumstances, prevents this parent from exercising this proposed schedule.

That is a factual question.

And factual questions require evidence.

In Nakkina, the district court essentially tried to solve a problem that the evidence did not establish existed.

The Court of Appeals said no.

Practical Takeaways From Nakkina v. Mahanthi

Employment is relevant, but assumptions about employment are not evidence.
Historical work demands do not automatically prove current unavailability.
A high income or demanding career does not itself justify reduced parent-time.
The court’s custody order must logically follow from its factual findings.
If the evidence supports equal time, an unsupported employment concern cannot supply the missing reason to deny it.
The parent requesting equal custody should affirmatively prove how the schedule will operate.
The parent claiming employment makes the schedule impossible should provide concrete evidence of the conflict.
Utah’s current statutes continue to require an evidence-based best-interest determination.

Utah Child Custody Representation

Custody cases are won and lost on facts.

Words such as busy, unavailable, uninvolved, primary caregiver, and demanding career are conclusions. They become meaningful only when they are connected to evidence.

At Rifleman Law & Mediation, we represent parents in contested Utah child custody and parent-time disputes, including cases involving equal parent-time, work schedules, school arrangements, relocation, parenting plans, temporary orders, enforcement, and modification.

For families in northern Utah County, additional local information is available through our:

Have a Utah Child Custody or Parent-Time Question?

If your custody case involves a dispute about work schedules, equal parent-time, historical caregiving, school transportation, or whether a proposed 50/50 schedule is actually workable, the issue should be approached through evidence—not assumptions.

Rifleman Law & Mediation
Saratoga Springs, Utah
801-510-0503

Request a free, confidential consultation with a Utah divorce and child custody attorney.

Legal Disclaimer: This article provides general information concerning Utah divorce, child custody, and parent-time law and is not legal advice concerning any particular case. Custody determinations are fact-specific, and statutes and appellate decisions should be reviewed in their current form before reliance in litigation.

Authorities: Nakkina v. Mahanthi, 2021 UT App 111; Utah Code §§ 81-9-204, 81-9-206, and 81-9-305. The amended Nakkina opinion replaced the court’s earlier opinion reported as 2021 UT App 63.