H.B. 79

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CHILD CUSTODY AND VISITATION AMENDMENTS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Bryan D. Holladay
5 AN ACT RELATING TO HUSBAND AND WIFE; PROHIBITING GENDER PREFERENCES
6 IN AWARDING CUSTODY; IDENTIFYING FINANCIAL STABILITY AS A FACTOR IN
7 DETERMINING CUSTODY; STATING PUBLIC POLICY IN MAINTAINING THE
8 PARENT-CHILD RELATIONSHIP; AMENDING VISITATION ENFORCEMENT LAWS;
9 MAKING VISITATION ENFORCEMENT LAWS STATEWIDE BY REPEALING STATUS
10 AS A PILOT PROGRAM; AND PROVIDING AN EFFECTIVE DATE.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 30-3-10, as last amended by Chapter 131, Laws of Utah 1993
14 78-32-12.2, as enacted by Chapter 152, Laws of Utah 1993
15 REPEALS:
16 78-32-12.3, as enacted by Chapter 152, Laws of Utah 1993
17 Be it enacted by the Legislature of the state of Utah:
18 Section 1. Section 30-3-10 is amended to read:
19 30-3-10. Custody of children in case of separation or divorce -- Custody
20 consideration.
21 (1) If a husband and wife having minor children are separated, or their marriage is declared
22 void or dissolved, the court shall make an order for the future care and custody of the minor
23 children as it considers appropriate. In determining custody, the court shall consider the best
24 interests of the child and the past conduct and demonstrated moral standards of each of the parties.
25 The court may inquire of the children and take into consideration the children's desires regarding
26 the future custody, but the expressed desires are not controlling and the court may determine the
27 children's custody otherwise.

1 (2) (a) In awarding custody, the court shall consider, among other factors the court finds
2 relevant, which parent is most likely to act in the best interests of the child, including allowing the
3 child frequent and continuing contact with the noncustodial parent as the court finds appropriate
4 and providing a financially stable environment.
5 (b) Notwithstanding Subsection (2)(a), the court in awarding custody may not give
6 preference to one parent over the other on the basis of a parent's gender.
7 (3) If the court finds that one parent does not desire custody of the child, or has attempted
8 to permanently relinquish custody to a third party, it shall take that evidence into consideration in
9 determining whether to award custody to the other parent.
10 (4) The court shall enter findings as to the underlying reasons for its award of custody.
11 (5) Notwithstanding the separation or divorce of parents and an award of custody under
12 this section, it is the public policy of this state that:
13 (a) a child have frequent, meaningful, and continuing contact with each parent as is
14 consistent with the best interests of the child;
15 (b) each parent share in the rights, responsibilities, and joys of child rearing; and
16 (c) no person hinder, disrupt, or deny court-ordered visitation or the attendant parental
17 rights of a parent to whom custody has not been awarded without legal justification.
18 Section 2. Section 78-32-12.2 is amended to read:
19 78-32-12.2. Definitions -- Sanctions.
20 (1) For purposes of this section:
21 (a) "Make up visitation" means visitation which is:
22 (i) of the same type and duration of visitation as that which was denied, including
23 visitation during weekdays, weekends, holidays, and during extended visitation periods;
24 (ii) to be made up within one year after the court has entered its order of make up
25 visitation; and
26 (iii) in the manner chosen by the aggrieved parent if it is in the best interest of the child.
27 (b) "Petition" means a petition brought by a parent, a grandparent as provided in Section
28 30-5-2, by other immediate family members, or upon the court's own motion alleging that a parent
29 is not complying with a visitation order in a decree of divorce or a subsequent visitation
30 enforcement order which may be brought at different stages in the alleged pattern of
31 noncompliance:

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1 (i) a first petition is a petition to enforce an original order of visitation or a petition filed
2 after three years from the last visitation enforcement order; and
3 [(ii) a second petition is a petition filed within three years following entry of the first
4 visitation enforcement order; and]
5 [(iii)] (ii) a [third] second petition is a petition filed within three years following entry of
6 the [second] first visitation enforcement order.
7 (c) "Substantial noncompliance" means conduct which:
8 (i) substantially interferes with a court ordered visitation schedule; or
9 (ii) interferes with parent's right to frequent, meaningful, and continuing access with his
10 child and which substantially impairs that parent-child relationship.
11 (d) "Visitation enforcement order" means an order to enforce compliance with an original
12 visitation order through the use of sanctions.
13 (2) Upon a first petition, the court shall order:
14 (a) if the first petition is uncontested, by default:
15 (i) a permanent injunction enjoining the noncompliance with the court's visitation order;
16 (ii) make up visitation for the aggrieved parent and child; and
17 (iii) participation in workshops, classes, or individual counseling to educate the parent
18 about the importance of complying with the court order and providing the child with a continuing
19 relationship with both parents as provided in Subsection 78-32-12.1 (1)(b); or
20 (b) if the first petition is contested, the court shall hold a hearing to determine by a
21 preponderance of the evidence whether there has been a substantial noncompliance with the
22 visitation order.
23 (3) Upon a finding of substantial noncompliance, the court shall order:
24 (a) actual costs including actual attorney fees and court costs to the prevailing party;
25 (b) make up visitation for the aggrieved parent and child;
26 (c) a minimum of [10] ten hours of community service as provided in Subsection
27 78-32-12.1 (1) (a); and
28 (d) a permanent injunction enjoining the noncompliance with the court's visitation order.
29 (4) Upon a finding of substantial noncompliance, the court may order:
30 (a) mediation with the requirement to report back to the court on the results of mediation
31 within 30 days;

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1 (b) participation in workshops, classes, or individual counseling to educate the parent
2 about the importance of complying with the court order and providing the child with a continuing
3 relationship with both parents as provided in Subsection 78-32-12.1 (1)(b); or
4 (c) a fine or jail sentence or other appropriate sanctions as provided under contempt of
5 court in Section 78-32-10.
6 [(5) Upon a second petition, the court shall order:]
7 [(a) if the second petition is uncontested, by default:]
8 [(i) actual costs including actual attorney fees and court costs;]
9 [(ii) make up visitation to be provided for the aggrieved parent and child;]
10 [(iii) a minimum of 10 hours of community service as provided in Subsection
11 78-32-12.1(1)(a); and]
12 [(iv) impose a fine or jail sentence or other appropriate sanctions as provided under
13 contempt of court in Section 78-32-10; or]
14 [(b) if the second petition is contested, the court shall hold a hearing to determine by a
15 preponderance of the evidence whether there has been a substantial noncompliance with the
16 visitation orders.]
17 [(6) Upon a finding of a substantial noncompliance, the court shall order:]
18 [(a) actual costs including actual attorney fees and court costs to the prevailing party;]
19 [(b) make up visitation to be provided for the aggrieved party and child at twice the
20 amount of time previously wrongfully denied and under the same conditions as provided in
21 Subsections 78-32-12.2(3)(a) through (c);]
22 [(c) a minimum of 20 hours of community service as provided in Subsection
23 78-32-12.1(1)(a);]
24 [(d) a contempt order which imposes a fine or jail sentence as provided in Section
25 78-32-10; and]
26 [(e) the violator to post bond or security in the amount determined by the court to insure
27 future compliance.]
28 [(7) The court may impose additional sanctions which may include any additional
29 remedies, terms, or conditions which are consistent with the court's previous order.]
30 [(8)] (5) Upon a [third] second petition, the court shall order:
31 (a) if the [third] second petition is uncontested, by default:

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1 (i) actual costs including actual attorney fees and court costs;
2 (ii) make up visitation to be provided for the aggrieved party and child at twice the amount
3 of time previously denied and under the same conditions as provided in Subsections
4 [78-32-12.2](3)(a) through (c);
5 (iii) a minimum of ten hours of community service as provided in Subsection
6 78-32-12.1(1)(a); and
7 (iv) impose a fine or jail sentence or other appropriate sanctions as provided under
8 contempt of court in Section 78-32-10; or
9 (b) if the [third] second petition is contested, the court shall hold a hearing to determine
10 by a preponderance of the evidence whether there has been a substantial noncompliance with the
11 visitation orders.
12 [(9)] (6) Upon a finding of substantial noncompliance, the court shall order:
13 (a) actual costs including actual attorney fees and court costs to the prevailing party;
14 (b) a finding that there has been a prima facie showing of a substantial change of
15 circumstances which is against the best interest of the child for purposes of modification of
16 custody and order a temporary change of custody for a duration to be determined by the court; and
17 (c) a finding that there has been a probable cause showing of custodial interference as
18 provided in Section 76-5-303 and order the case to be referred to the county attorney for
19 prosecution.
20 [(10)] (7) The court may decline to issue an order with the alternative sanctions as
21 provided in Subsections [78-32-12.2](2) through [(9)] (6) although the petitioner has met his
22 burden of proof if the court provides findings on the record explaining why a sanction or sanctions
23 were not imposed.
24 [(11)] (8) The noncustodial parent shall give the court and the custodial parent written
25 notice of his intention to exercise the make up visitation at least seven days before the proposed
26 visit if it is to be on a weekday or weekend, and at least 30 days before the proposed visit if it is
27 to be on a holiday or an extended visitation period.
28 [(12)] (9) The court shall suspend any proceedings under this section [78-32-12.2] if
29 substantial allegations of child abuse or child sexual abuse are under investigation or a case is
30 pending in the courts on the allegations.
31 [(13)] (10) The filing of any petition under this section which is found to be without merit

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1 and not asserted or defended against in good faith shall be subject to sanctions as determined by
2 the court, including court costs and attorney fees.
3 [(14) This section shall be implemented only as a pilot program in the first judicial district
4 as provided in Section 78-32-12.3.]
5 Section 3. Repealer.
6 This act repeals:
7 Section 78-32-12.3, Pilot program -- Purpose -- Evaluation of pilot program --
8 Exceptions.
9 Section 4. Effective date.
10 This act takes effect on July 1, 1997.




Legislative Review Note
as of 1-16-97 10:38 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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