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H.B. 104

             1     

CHILD CUSTODY MEDIATION PROCEDURE

             2     
2000 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Loretta Baca

             5      AN ACT RELATING TO HUSBAND AND WIFE; PROVIDING FOR MEDIATION OF
             6      CHILD-CUSTODY ISSUES IN DIVORCE; REQUIRING THAT AGREEMENTS NOT
             7      ADHERED TO BY ONE PARTY BE SENT BACK THROUGH THE MEDIATION PROCESS;
             8      AND MAKING TECHNICAL CORRECTIONS.
             9      This act affects sections of Utah Code Annotated 1953 as follows:
             10      AMENDS:
             11          30-3-10, as last amended by Chapter 6, Laws of Utah 1999
             12          30-3-38, as last amended by Chapters 235 and 329, Laws of Utah 1997
             13      Be it enacted by the Legislature of the state of Utah:
             14          Section 1. Section 30-3-10 is amended to read:
             15           30-3-10. Custody of children in case of separation or divorce -- Custody
             16      consideration.
             17          (1) If a husband and wife having minor children are separated, or their marriage is declared
             18      void or dissolved, the court shall make an order for the future care and custody of the minor
             19      children as it considers appropriate. In determining custody, the court shall consider the best
             20      interests of the child and the past conduct and demonstrated moral standards of each of the parties.
             21      The court may inquire of the children and take into consideration the children's desires regarding
             22      future custody or visitation schedules, but the expressed desires are not controlling and the court
             23      may determine the children's custody or visitation otherwise. Interviews with the children may be
             24      conducted by the judge in camera only with the prior consent of the parties.
             25          (2) In awarding custody, the court shall consider, among other factors the court finds
             26      relevant, which parent is most likely to act in the best interests of the child, including allowing the
             27      child frequent and continuing contact with the noncustodial parent as the court finds appropriate.


             28          (3) If the court finds that one parent does not desire custody of the child, or has attempted
             29      to permanently relinquish custody to a third party, it shall take that evidence into consideration in
             30      determining whether to award custody to the other parent.
             31          (4) (a) A court may not discriminate against a parent due to a disability, as defined in
             32      Section 57-21-2 , in awarding custody or determining whether a substantial change has occurred
             33      for the purpose of modifying an award of custody.
             34          (b) If a court takes a parent's disability into account in awarding custody or determining
             35      whether a substantial change has occurred for the purpose of modifying an award of custody, the
             36      parent with a disability may rebut any evidence, presumption, or inference arising therefrom by
             37      showing that:
             38          (i) the disability does not significantly or substantially inhibit the parent's ability to provide
             39      for the physical and emotional needs of the child at issue; or
             40          (ii) the parent with a disability has sufficient human, monetary, or other resources available
             41      to supplement the parent's ability to provide for the physical and emotional needs of the child at
             42      issue.
             43          (c) Nothing in this section may be construed to apply to:
             44          (i) abuse, neglect, or dependency proceedings under Title 62A, Chapter 4a, Child and
             45      Family Services, or Title 78, Chapter 3a, Juvenile Courts; or
             46          (ii) adoption proceedings under Title 78, Chapter 30, Adoption.
             47          (5) If the parents arrive at an agreement concerning the custody of their minor children
             48      through mediation, the court may approve the arrangement and sign the agreement as an order.
             49          Section 2. Section 30-3-38 is amended to read:
             50           30-3-38. Pilot Program for Expedited Visitation Enforcement.
             51          (1) There is established an Expedited Visitation Enforcement Pilot Program in the third
             52      judicial district to be administered by the Administrative Office of the Courts from July 1, 1996,
             53      to July 1, 2000.
             54          (2) As used in this section:
             55          (a) "Mediator" means a person who:
             56          (i) is qualified to mediate visitation disputes under criteria established by the
             57      Administrative Office of the Courts; and
             58          (ii) agrees to follow billing guidelines established by the Administrative Office of the


             59      Courts and this section.
             60          (b) "Services to facilitate visitation" or "services" means services designed to assist
             61      families in resolving visitation problems through:
             62          (i) counseling;
             63          (ii) supervised visitation;
             64          (iii) neutral drop-off and pick-up;
             65          (iv) educational classes; and
             66          (v) other related activities.
             67          (3) (a) Under this pilot program, if a parent files a motion in the third district court alleging
             68      that court-ordered visitation rights are being violated, the clerk of the court, after assigning the case
             69      to a judge, shall refer the case to the administrator of this pilot program for assignment to a
             70      mediator.
             71          (b) Upon receipt of a case, the mediator shall:
             72          (i) meet with the parents to address visitation issues within 15 days of the motion being
             73      filed;
             74          (ii) assess the situation;
             75          (iii) facilitate an agreement on visitation between the parents; and
             76          (iv) determine whether a referral to a service provider under Subsection (3)(c) is
             77      warranted.
             78          (c) While a case is in mediation, a mediator may refer the parents to a service provider
             79      designated by the Department of Human Services for services to facilitate visitation if:
             80          (i) the services may be of significant benefit to the parents; or
             81          (ii) (A) a mediated agreement between the parents is unlikely; and
             82          (B) the services may facilitate an agreement.
             83          (d) At anytime during mediation, a mediator shall terminate mediation and transfer the
             84      case to the administrator of the pilot program for referral to the judge to whom the case was
             85      assigned under Subsection [(2)] (3)(a) if:
             86          (i) a written agreement between the parents is reached; or
             87          (ii) the parents are unable to reach an agreement through mediation; and
             88          (A) the parents have received services to facilitate visitation;
             89          (B) both parents object to receiving services to facilitate visitation; or


             90          (C) the parents are unlikely to benefit from receiving services to facilitate visitation.
             91          (e) Upon receiving a case from the administrator of the pilot program, a judge may:
             92          (i) review the agreement of the parents and, if acceptable, sign it as an order;
             93          (ii) order the parents to receive services to facilitate visitation;
             94          (iii) proceed with the case; or
             95          (iv) take other appropriate action.
             96          (4) (a) If a parent makes a particularized allegation of physical or sexual abuse of a child
             97      who is the subject of a visitation order against the other parent or a member of the other parent's
             98      household to a mediator or service provider, the mediator or service provider shall immediately
             99      report that information to:
             100          (i) the judge assigned to the case who may immediately issue orders and take other
             101      appropriate action to resolve the allegation and protect the child; and
             102          (ii) the Division of Family Services within the Department of Human Services in the
             103      manner required by Title 62A, Chapter 4a, Part 4, Child Abuse or Neglect Reporting
             104      Requirements.
             105          (b) If an allegation under Subsection (4)(a) is made against a parent with visitation rights
             106      or a member of that parent's household, visitation by that parent shall be supervised until:
             107          (i) the allegation has been resolved; or
             108          (ii) a court orders otherwise.
             109          (c) Notwithstanding an allegation under Subsection (4)(a), a mediator may continue to
             110      mediate visitation problems and a service provider may continue to provide services to facilitate
             111      visitation unless otherwise ordered by a court.
             112          (5) (a) The Department of Human Services may contract with one or more entities in
             113      accordance with Title 63, Chapter 56, Utah Procurement Code, to provide:
             114          (i) services to facilitate visitation;
             115          (ii) case management services; and
             116          (iii) administrative services.
             117          (b) An entity who contracts with the Department of Human Services under Subsection
             118      (5)(a) shall:
             119          (i) be qualified to provide one or more of the services listed in Subsection (5)(a); and
             120          (ii) agree to follow billing guidelines established by the Department of Human Services


             121      and this section.
             122          (6) (a) Except as provided in Subsection (6)(b), the cost of mediation and the cost of
             123      services to facilitate visitation shall be:
             124          (i) reduced to a sum certain;
             125          (ii) divided equally between the parents; and
             126          (iii) charged against each parent taking into account the ability of that parent to pay under
             127      billing guidelines adopted in accordance with this section.
             128          (b) (i) A judge may order a parent to pay an amount in excess of that provided for in
             129      Subsection (6)(a) if the parent:
             130          (A) failed to participate in good faith in mediation or services to facilitate visitation; or
             131          (B) made an unfounded assertion or claim of physical or sexual abuse of a child.
             132          (c) (i) The cost of mediation and services to facilitate visitation may be charged to parents
             133      at periodic intervals.
             134          (ii) Mediation and services to facilitate visitation may only be terminated on the ground
             135      of nonpayment if both parents are delinquent.
             136          (7) If a parent fails to cooperate in good faith in mediation or services to facilitate
             137      visitation, a court may order, in subsequent proceedings, a temporary change in custody or
             138      visitation.
             139          (8) If a parent fails to comply with the agreement reached under Subsection (3), the court
             140      may refer the case back to the administrator of the program for renewed mediation.
             141          [(8)] (9) (a) The Judicial Council may make rules to implement and administer the
             142      provisions of this pilot program related to mediation.
             143          (b) The Department of Human Services may make rules to implement and administer the
             144      provisions of this pilot program related to services to facilitate visitation.
             145          [(9)] (10) (a) The Administrative Office of the Courts shall adopt outcome measures to
             146      evaluate the effectiveness of the mediation component of this pilot program. Progress reports shall
             147      be provided to the Judiciary Interim Committee by August 1998 and as requested thereafter by the
             148      committee. At least once during this pilot program, the Administrative Office of the Courts shall
             149      present to the committee the results of a survey that measures the effectiveness of the program in
             150      terms of increased compliance with visitation orders and the responses of interested persons.
             151          (b) The Department of Human Services shall adopt outcome measures to evaluate the


             152      effectiveness of the services component of this pilot program. Progress reports shall be provided
             153      to the Judiciary Interim Committee by August 1998 and as requested thereafter by the committee.
             154          (c) The Administrative Office of the Courts and the Department of Human Services may
             155      adopt joint outcome measures and file joint reports to satisfy the requirements of Subsections
             156      [8(a)] (9)(a) and (b).
             157          [(10)] (11) (a) The Department of Human Services shall apply for federal funds designated
             158      for visitation, if such funds are available.
             159          (b) This pilot program shall be funded through funds received under Subsection (11)(a),
             160      the Children's Legal Defense Account as established in Section 63-63a-8 , or other available
             161      funding. Without funding, the pilot program may not proceed.




Legislative Review Note
    as of 1-4-00 1:29 PM


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

Office of Legislative Research and General Counsel


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