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S.B. 104 Enrolled
AN ACT RELATING TO THE JUDICIAL CODE; ENACTING THE UNIFORM CHILD
CUSTODY JURISDICTION AND ENFORCEMENT ACT; AND PROVIDING AN EFFECTIVE
DATE.
This act affects sections of Utah Code Annotated 1953 as follows:
ENACTS:
78-45c-101, Utah Code Annotated 1953
78-45c-102, Utah Code Annotated 1953
78-45c-103, Utah Code Annotated 1953
78-45c-104, Utah Code Annotated 1953
78-45c-105, Utah Code Annotated 1953
78-45c-106, Utah Code Annotated 1953
78-45c-107, Utah Code Annotated 1953
78-45c-108, Utah Code Annotated 1953
78-45c-109, Utah Code Annotated 1953
78-45c-110, Utah Code Annotated 1953
78-45c-111, Utah Code Annotated 1953
78-45c-112, Utah Code Annotated 1953
78-45c-201, Utah Code Annotated 1953
78-45c-202, Utah Code Annotated 1953
78-45c-203, Utah Code Annotated 1953
78-45c-204, Utah Code Annotated 1953
78-45c-205, Utah Code Annotated 1953
78-45c-206, Utah Code Annotated 1953
78-45c-207, Utah Code Annotated 1953
78-45c-208, Utah Code Annotated 1953
78-45c-209, Utah Code Annotated 1953
78-45c-210, Utah Code Annotated 1953
78-45c-301, Utah Code Annotated 1953
78-45c-302, Utah Code Annotated 1953
78-45c-303, Utah Code Annotated 1953
78-45c-304, Utah Code Annotated 1953
78-45c-305, Utah Code Annotated 1953
78-45c-306, Utah Code Annotated 1953
78-45c-307, Utah Code Annotated 1953
78-45c-308, Utah Code Annotated 1953
78-45c-309, Utah Code Annotated 1953
78-45c-310, Utah Code Annotated 1953
78-45c-311, Utah Code Annotated 1953
78-45c-312, Utah Code Annotated 1953
78-45c-313, Utah Code Annotated 1953
78-45c-314, Utah Code Annotated 1953
78-45c-315, Utah Code Annotated 1953
78-45c-316, Utah Code Annotated 1953
78-45c-317, Utah Code Annotated 1953
78-45c-318, Utah Code Annotated 1953
REPEALS:
78-45c-1, as enacted by Chapter 41, Laws of Utah 1980
78-45c-2, as enacted by Chapter 41, Laws of Utah 1980
78-45c-3, as last amended by Chapter 143, Laws of Utah 1990
78-45c-4, as enacted by Chapter 41, Laws of Utah 1980
78-45c-5, as enacted by Chapter 41, Laws of Utah 1980
78-45c-6, as enacted by Chapter 41, Laws of Utah 1980
78-45c-7, as enacted by Chapter 41, Laws of Utah 1980
78-45c-8, as last amended by Chapter 20, Laws of Utah 1995
78-45c-9, as enacted by Chapter 41, Laws of Utah 1980
78-45c-10, as enacted by Chapter 41, Laws of Utah 1980
78-45c-11, as enacted by Chapter 41, Laws of Utah 1980
78-45c-12, as enacted by Chapter 41, Laws of Utah 1980
78-45c-13, as enacted by Chapter 41, Laws of Utah 1980
78-45c-14, as enacted by Chapter 41, Laws of Utah 1980
78-45c-15, as last amended by Chapter 3, Laws of Utah 1993
78-45c-16, as enacted by Chapter 41, Laws of Utah 1980
78-45c-17, as enacted by Chapter 41, Laws of Utah 1980
78-45c-18, as enacted by Chapter 41, Laws of Utah 1980
78-45c-19, as enacted by Chapter 41, Laws of Utah 1980
78-45c-20, as enacted by Chapter 41, Laws of Utah 1980
78-45c-21, as enacted by Chapter 41, Laws of Utah 1980
78-45c-22, as enacted by Chapter 41, Laws of Utah 1980
78-45c-23, as enacted by Chapter 41, Laws of Utah 1980
78-45c-24, as enacted by Chapter 41, Laws of Utah 1980
78-45c-25, as enacted by Chapter 41, Laws of Utah 1980
78-45c-26, as enacted by Chapter 41, Laws of Utah 1980
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 78-45c-101 is enacted to read:
78-45c-101. Title.
This chapter is known as the "Utah Uniform Child Custody Jurisdiction and Enforcement
Act."
Section 2. Section 78-45c-102 is enacted to read:
78-45c-102. Definitions.
As used in this chapter:
(1) "Abandoned" means left without provision for reasonable and necessary care or
supervision.
(2) "Child" means an individual under 18 years of age and not married.
(3) "Child custody determination" means a judgment, decree, or other order of a court
providing for the legal custody, physical custody, or visitation with respect to a child. The term
includes a permanent, temporary, initial, and modification order. The term does not include an order
relating to child support or other monetary obligation of an individual.
(4) "Child custody proceeding" means a proceeding in which legal custody, physical custody,
or visitation with respect to a child is an issue. The term includes a proceeding for divorce,
separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and
protection from domestic violence, in which the issue may appear. The term does not include a
proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Part 3,
Enforcement.
(5) "Commencement" means the filing of the first pleading in a proceeding.
(6) "Court" means an entity authorized under the law of a state to establish, enforce, or
modify a child custody determination.
(7) "Home state" means the state in which a child lived with a parent or a person acting as
a parent for at least six consecutive months immediately before the commencement of a child custody
proceeding. In the case of a child less than six months of age, the term means the state in which the
child lived from birth with any of the persons mentioned. A period of temporary absence of any of
the mentioned persons is part of the period.
(8) "Initial determination" means the first child custody determination concerning a particular
child.
(9) "Issuing court" means the court that makes a child custody determination for which
enforcement is sought under this chapter.
(10) "Issuing state" means the state in which a child custody determination is made.
(11) "Modification" means a child custody determination that changes, replaces, supersedes,
or is otherwise made after a previous determination concerning the same child, whether or not it is
made by the court that made the previous determination.
(12) "Person" includes government, governmental subdivision, agency, or instrumentality,
or any other legal or commercial entity.
(13) "Person acting as a parent" means a person, other than a parent, who:
(a) has physical custody of the child or has had physical custody for a period of six
consecutive months, including any temporary absence, within one year immediately before the
commencement of a child custody proceeding; and
(b) has been awarded legal custody by a court or claims a right to legal custody under the law
of this state.
(14) "Physical custody" means the physical care and supervision of a child.
(15) "State" means a state of the United States, the District of Columbia, Puerto Rico, the
United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the
United States.
(16) "Tribe" means an Indian tribe, or band, or Alaskan Native village which is recognized
by federal law or formally acknowledged by a state.
(17) "Writ of assistance" means an order issued by a court authorizing law enforcement
officers to take physical custody of a child.
Section 3. Section 78-45c-103 is enacted to read:
78-45c-103. Proceedings governed by other law.
This chapter does not govern:
(1) an adoption proceeding; or
(2) a proceeding pertaining to the authorization of emergency medical care for a child.
Section 4. Section 78-45c-104 is enacted to read:
78-45c-104. Application to Indian tribes.
(1) A child custody proceeding that pertains to an Indian child as defined in the Indian Child
Welfare Act, 25 U.S.C. 1901 et seq., is not subject to this chapter to the extent that it is governed
by the Indian Child Welfare Act.
(2) A court of this state shall treat a tribe as a state of the United States for purposes of Part
1, General Provisions, and Part 2, Jurisdiction.
(3) A child custody determination made by a tribe under factual circumstances in substantial
conformity with the jurisdictional standards of this chapter shall be recognized and enforced under
the provisions of Part 3, Enforcement.
Section 5. Section 78-45c-105 is enacted to read:
78-45c-105. International application of chapter.
(1) A court of this state shall treat a foreign country as a state of the United States for
purposes of applying Part 1, General Provisions, and Part 2, Jurisdiction.
(2) A child custody determination made in a foreign country under factual circumstances in
substantial conformity with the jurisdictional standards of this chapter shall be recognized and
enforced under Part 3, Enforcement.
(3) The court need not apply the provisions of this chapter when the child custody law of the
other country violates fundamental principles of human rights.
Section 6. Section 78-45c-106 is enacted to read:
78-45c-106. Binding force of child custody determination.
A child custody determination made by a court of this state that had jurisdiction under this
chapter binds all persons who have been served in accordance with the laws of this state or notified
in accordance with Section 78-45c-108 or who have submitted to the jurisdiction of the court, and
who have been given an opportunity to be heard. The determination is conclusive as to them as to
all decided issues of law and fact except to the extent the determination is modified.
Section 7. Section 78-45c-107 is enacted to read:
78-45c-107. Priority.
If a question of existence or exercise of jurisdiction under this chapter is raised in a child
custody proceeding, the question, upon request of a party, shall be given priority on the calendar and
handled expeditiously.
Section 8. Section 78-45c-108 is enacted to read:
78-45c-108. Notice to persons outside state.
(1) Notice required for the exercise of jurisdiction when a person is outside this state may be
given in a manner prescribed by the law of this state for the service of process or by the law of the
state in which the service is made. Notice shall be given in a manner reasonably calculated to give
actual notice, but may be by publication if other means are not effective.
(2) Proof of service may be made in the manner prescribed by the law of this state or by the
law of the state in which the service is made.
(3) Notice is not required for the exercise of jurisdiction with respect to a person who
submits to the jurisdiction of the court.
Section 9. Section 78-45c-109 is enacted to read:
78-45c-109. Appearance and limited immunity.
(1) A party to a child custody proceeding who is not subject to personal jurisdiction in this
state and is a responding party under Part 2, Jurisdiction, a party in a proceeding to modify a child
custody determination under Part 2, Jurisdiction, or a petitioner in a proceeding to enforce or register
a child custody determination under Part 3, Enforcement, may appear and participate in the
proceeding without submitting to personal jurisdiction over the party for another proceeding or
purpose.
(2) A party is not subject to personal jurisdiction in this state solely by being physically
present for the purpose of participating in a proceeding under this chapter. If a party is subject to
personal jurisdiction in this state on a basis other than physical presence, the party may be served with
process in this state. If a party present in this state is subject to the jurisdiction of another state,
service of process allowable under the laws of that state may be accomplished in this state.
(3) The immunity granted by this section does not extend to civil litigation based on acts
unrelated to the participation in a proceeding under this chapter committed by an individual while
present in this state.
Section 10. Section 78-45c-110 is enacted to read:
78-45c-110. Communication between courts.
(1) A court of this state may communicate with a court in another state concerning a
proceeding arising under this chapter.
(2) The court may allow the parties to participate in the communication. If the parties are
not able to participate in the communication, the parties shall be given the opportunity to present facts
and legal arguments before a decision on jurisdiction is made.
(3) A communication between courts on schedules, calendars, court records, and similar
matters may occur without informing the parties. A record need not be made of that communication.
(4) Except as provided in Subsection (3), a record shall be made of the communication. The
parties shall be informed promptly of the communication and granted access to the record.
(5) For the purposes of this section, "record" means information that is inscribed on a tangible
medium or that which is stored in an electronic or other medium and is retrievable in perceivable
form. A record includes notes or transcripts of a court reporter who listened to a conference call
between the courts, an electronic recording of a telephone call, a memorandum or an electronic
record of the communication between the courts, or a memorandum or an electronic record made by
a court after the communication.
Section 11. Section 78-45c-111 is enacted to read:
78-45c-111. Taking testimony in another state.
(1) In addition to other procedures available to a party, a party to a child custody proceeding
may offer testimony of witnesses who are located in another state, including testimony of the parties
and the child, by deposition or other means allowable in this state for testimony taken in another state.
The court on its own motion may order that the testimony of a person be taken in another state and
may prescribe the manner in which and the terms upon which the testimony is taken.
(2) A court of this state may permit an individual residing in another state to be deposed or
to testify by telephone, audiovisual means, or other electronic means before a designated court or at
another location in that state. A court of this state shall cooperate with courts of other states in
designating an appropriate location for the deposition or testimony.
(3) Documentary evidence transmitted from another state to a court of this state by
technological means that do not produce an original writing may not be excluded from evidence on
an objection based on the means of transmission.
Section 12. Section 78-45c-112 is enacted to read:
78-45c-112. Cooperation between courts -- Preservation of records.
(1) A court of this state may request the appropriate court of another state to:
(a) hold an evidentiary hearing;
(b) order a person to produce or give evidence under procedures of that state;
(c) order that an evaluation be made with respect to the custody of a child involved in a
pending proceeding;
(d) forward to the court of this state a certified copy of the transcript of the record of the
hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the
request; and
(e) order a party to a child custody proceeding or any person having physical custody of the
child to appear in the proceeding with or without the child.
(2) Upon request of a court of another state, a court of this state may:
(a) hold a hearing or enter an order described in Subsection (1); or
(b) order a person in this state to appear alone or with the child in a custody proceeding in
another state.
(3) A court of this state may condition compliance with a request under Subsection (2)(b)
upon assurance by the other state that travel and other necessary expenses will be advanced or
reimbursed. If the person who has physical custody of the child cannot be served or fails to obey the
order, or it appears the order will be ineffective, the court may issue a warrant of arrest against the
person to secure his appearance with the child in the other state.
(4) Travel and other necessary and reasonable expenses incurred under Subsections (1) and
(2) may be assessed against the parties according to the law of this state.
(5) A court of this state shall preserve the pleadings, orders, decrees, records of hearings,
evaluations, and other pertinent records with respect to a child custody proceeding until the child
attains 18 years of age. Upon appropriate request by a court or law enforcement official of another
state, the court shall forward a certified copy of these records.
Section 13. Section 78-45c-201 is enacted to read:
78-45c-201. Initial child custody jurisdiction.
(1) Except as otherwise provided in Section 78-45c-204 , a court of this state has jurisdiction
to make an initial child custody determination only if:
(a) this state is the home state of the child on the date of the commencement of the
proceeding, or was the home state of the child within six months before the commencement of the
proceeding and the child is absent from this state but a parent or person acting as a parent continues
to live in this state;
(b) a court of another state does not have jurisdiction under Subsection (1)(a), or a court of
the home state of the child has declined to exercise jurisdiction on the ground that this state is the
more appropriate forum under Section 78-45c-207 or 78-45c-208 ; and
(i) the child and the child's parents, or the child and at least one parent or a person acting as
a parent have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child's care, protection,
training, and personal relationships;
(c) all courts having jurisdiction under Subsection (1)(a) or (b) have declined to exercise
jurisdiction on the ground that a court of this state is the more appropriate forum to determine the
custody of the child under Section 78-45c-207 or 78-45c-208 ; or
(d) no state would have jurisdiction under Subsection (1)(a), (b), or (c).
(2) Subsection (1) is the exclusive jurisdictional basis for making a child custody
determination by a court of this state.
(3) Physical presence of, or personal jurisdiction over, a party or a child is neither necessary
nor sufficient to make a child custody determination.
Section 14. Section 78-45c-202 is enacted to read:
78-45c-202. Exclusive, continuing jurisdiction.
(1) Except as otherwise provided in Section 78-45c-204 , a court of this state that has made
a child custody determination consistent with Section 78-45c-201 or 78-45c-203 has exclusive,
continuing jurisdiction over the determination until:
(a) a court of this state determines that neither the child, the child and one parent, nor the
child and a person acting as a parent have a significant connection with this state and that substantial
evidence is no longer available in this state concerning the child's care, protection, training, and
personal relationships; or
(b) a court of this state or a court of another state determines that neither the child, nor a
parent, nor any person acting as a parent presently resides in this state.
(2) A court of this state that has exclusive, continuing jurisdiction under this section may
decline to exercise its jurisdiction if the court determines that it is an inconvenient forum under
Section 78-45c-207 .
(3) A court of this state that has made a child custody determination and does not have
exclusive, continuing jurisdiction under this section may modify that determination only if it has
jurisdiction to make an initial determination under Section 78-45c-201 .
Section 15. Section 78-45c-203 is enacted to read:
78-45c-203. Jurisdiction to modify determination.
Except as otherwise provided in Section 78-45c-204 , a court of this state may not modify a
child custody determination made by a court of another state unless a court of this state has
jurisdiction to make an initial determination under Subsection 78-45c-201 (1)(a) or (b) and:
(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction
under Section 78-45c-202 or that a court of this state would be a more convenient forum under
Section 78-45c-207 ; or
(2) a court of this state or a court of the other state determines that neither the child, nor a
parent, nor any person acting as a parent presently resides in the other state.
Section 16. Section 78-45c-204 is enacted to read:
78-45c-204. Temporary emergency jurisdiction.
(1) A court of this state has temporary emergency jurisdiction if the child is present in this
state and the child has been abandoned or it is necessary in an emergency to protect the child because
the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
(2) If there is no previous child custody determination that is entitled to be enforced under
this chapter, and if no child custody proceeding has been commenced in a court of a state having
jurisdiction under Sections 78-45c-201 through 78-45c-203 , a child custody determination made
under this section remains in effect until an order is obtained from a court of a state having
jurisdiction under Sections 78-45c-201 through 78-45c-203 . If a child custody proceeding has not
been or is not commenced in a court of a state having jurisdiction under Sections 78-45c-201 through
78-45c-203 , a child custody determination made under this section becomes a final determination,
if:
(a) it so provides; and
(b) this state becomes the home state of the child.
(3) If there is a previous child custody determination that is entitled to be enforced under this
chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction
under Sections 78-45c-201 through 78-45c-203 , any order issued by a court of this state under this
section shall specify in the order a period of time which the court considers adequate to allow the
person seeking an order to obtain an order from the state having jurisdiction under Sections
78-45c-201 through 78-45c-203 . The order issued in this state remains in effect until an order is
obtained from the other state within the period specified or the period expires.
(4) A court of this state that has been asked to make a child custody determination under this
section, upon being informed that a child custody proceeding has been commenced, or a child custody
determination has been made, by a court of a state having jurisdiction under Sections 78-45c-201
through 78-45c-203 , shall immediately communicate with the other court. A court of this state that
is exercising jurisdiction pursuant to Sections 78-45c-201 through 78-45c-203 , upon being informed
that a child custody proceeding has been commenced, or a child custody determination has been made
by a court of another state under a statute similar to this section shall immediately communicate with
the court of that state. The purpose of the communication is to resolve the emergency, protect the
safety of the parties and the child, and determine a period for the duration of the temporary order.
Section 17. Section 78-45c-205 is enacted to read:
78-45c-205. Notice -- Opportunity to be heard -- Joinder.
(1) Before a child custody determination is made under this chapter, notice and an
opportunity to be heard in accordance with the standards of Section 78-45c-108 shall be given to all
persons entitled to notice under the law of this state as in child custody proceedings between residents
of this state, any parent whose parental rights have not been previously terminated, and any person
having physical custody of the child.
(2) This chapter does not govern the enforceability of a child custody determination made
without notice and an opportunity to be heard.
(3) The obligation to join a party and the right to intervene as a party in a child custody
proceeding under this chapter are governed by the law of this state as in child custody proceedings
between residents of this state.
Section 18. Section 78-45c-206 is enacted to read:
78-45c-206. Simultaneous proceedings.
(1) Except as otherwise provided in Section 78-45c-204 , a court of this state may not
exercise its jurisdiction under this chapter if at the time of the commencement of the proceeding a
proceeding concerning the custody of the child had been previously commenced in a court of another
state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been
terminated or is stayed by the court of the other state because a court of this state is a more
convenient forum under Section 78-45c-207 .
(2) Except as otherwise provided in Section 78-45c-204 , a court of this state, before hearing
a child custody proceeding, shall examine the court documents and other information supplied by the
parties pursuant to Section 78-45c-209 . If the court determines that a child custody proceeding was
previously commenced in a court in another state having jurisdiction substantially in accordance with
this chapter, the court of this state shall stay its proceeding and communicate with the court of the
other state. If the court of the state having jurisdiction substantially in accordance with this chapter
does not determine that the court of this state is a more appropriate forum, the court of this state shall
dismiss the proceeding.
(3) In a proceeding to modify a child custody determination, a court of this state shall
determine whether a proceeding to enforce the determination has been commenced in another state.
If a proceeding to enforce a child custody determination has been commenced in another state, the
court may:
(a) stay the proceeding for modification pending the entry of an order of a court of the other
state enforcing, staying, denying, or dismissing the proceeding for enforcement;
(b) enjoin the parties from continuing with the proceeding for enforcement; or
(c) proceed with the modification under conditions it considers appropriate.
Section 19. Section 78-45c-207 is enacted to read:
78-45c-207. Inconvenient forum.
(1) A court of this state that has jurisdiction under this chapter to make a child custody
determination may decline to exercise its jurisdiction at any time if it determines that it is an
inconvenient forum under the circumstances and that a court of another state is a more appropriate
forum. The issue of inconvenient forum may be raised upon the court's own motion, request of
another court, or motion of a party.
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider
whether it is appropriate that a court of another state exercise jurisdiction. For this purpose, the court
shall allow the parties to submit information and shall consider all relevant factors, including:
(a) whether domestic violence has occurred and is likely to continue in the future and which
state could best protect the parties and the child;
(b) the length of time the child has resided outside this state;
(c) the distance between the court in this state and the court in the state that would assume
jurisdiction;
(d) the relative financial circumstances of the parties;
(e) any agreement of the parties as to which state should assume jurisdiction;
(f) the nature and location of the evidence required to resolve the pending litigation, including
the testimony of the child;
(g) the ability of the court of each state to decide the issue expeditiously and the procedures
necessary to present the evidence; and
(h) the familiarity of the court of each state with the facts and issues of the pending litigation.
(3) If a court of this state determines that it is an inconvenient forum and that a court of
another state is a more appropriate forum, it shall stay the proceedings upon condition that a child
custody proceeding be promptly commenced in another designated state and may impose any other
condition the court considers just and proper.
(4) A court of this state may decline to exercise its jurisdiction under this chapter if a child
custody determination is incidental to an action for divorce or another proceeding while still retaining
jurisdiction over the divorce or other proceeding.
Section 20. Section 78-45c-208 is enacted to read:
78-45c-208. Jurisdiction declined by reason of conduct.
(1) Except as otherwise provided in Section 78-45c-204 or by other law of this state, if a
court of this state has jurisdiction under this chapter because a person invoking the jurisdiction has
engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
(a) the parents and all persons acting as parents have acquiesced in the exercise of
jurisdiction;
(b) a court of the state otherwise having jurisdiction under Sections 78-45c-201 through
78-45c-203 determines that this state is a more appropriate forum under Section 78-45c-207 ; or
(c) no other state would have jurisdiction under Sections 78-45c-201 through 78-45c-203 .
(2) If a court of this state declines to exercise its jurisdiction pursuant to Subsection (1), it
may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the
wrongful conduct, including staying the proceeding until a child custody proceeding is commenced
in a court having jurisdiction under Sections 78-45c-201 through 78-45c-203 .
(3) If a court dismisses a petition or stays a proceeding because it declines to exercise its
jurisdiction pursuant to Subsection (1), it shall charge the party invoking the jurisdiction of the court
with necessary and reasonable expenses including costs, communication expenses, attorney's fees,
investigative fees, expenses for witnesses, travel expenses, and child care during the course of the
proceedings, unless the party from whom fees are sought establishes that the award would be clearly
inappropriate. The court may not assess fees, costs, or expenses against this state except as otherwise
provided by law other than this chapter.
Section 21. Section 78-45c-209 is enacted to read:
78-45c-209. Information to be submitted to court.
(1) In a child custody proceeding, each party, in its first pleading or in an attached affidavit,
shall give information, if reasonably ascertainable, under oath as to the child's present address, the
places where the child has lived during the last five years, and the names and present addresses of the
persons with whom the child has lived during that period. The pleading or affidavit shall state
whether the party:
(a) has participated, as a party or witness or in any other capacity, in any other proceeding
concerning the custody of or visitation with the child and, if so, identify the court, the case number
of the proceeding, and the date of the child custody determination, if any;
(b) knows of any proceeding that could affect the current proceeding, including proceedings
for enforcement and proceedings relating to domestic violence, protective orders, termination of
parental rights, and adoptions and, if so, identify the court and the case number and the nature of the
proceeding; and
(c) knows the names and addresses of any person not a party to the proceeding who has
physical custody of the child or claims rights of legal custody or physical custody of, or visitation
with, the child and, if so, the names and addresses of those persons.
(2) If the information required by Subsection (1) is not furnished, the court, upon its own
motion or that of a party, may stay the proceeding until the information is furnished.
(3) If the declaration as to any of the items described in Subsection (1) is in the affirmative,
the declarant shall give additional information under oath as required by the court. The court may
examine the parties under oath as to details of the information furnished and other matters pertinent
to the court's jurisdiction and the disposition of the case.
(4) Each party has a continuing duty to inform the court of any proceeding in this or any
other state that could affect the current proceeding.
(5) If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty
of a party or child would be put at risk by the disclosure of identifying information, that information
shall be sealed and not disclosed to the other party or the public unless the court orders the disclosure
to be made after a hearing in which the court takes into consideration the health, safety, or liberty of
the party or child and determines that the disclosure is in the interest of justice.
Section 22. Section 78-45c-210 is enacted to read:
78-45c-210. Appearance of parties and child.
(1) A court of this state may order a party to a child custody proceeding who is in this state
to appear before the court personally with or without the child. The court may order any person who
is in this state and who has physical custody or control of the child to appear physically with the child.
(2) If a party to a child custody proceeding whose presence is desired by the court is outside
this state, the court may order that a notice given pursuant to Section 78-45c-108 include a statement
directing the party to appear personally with or without the child and declaring that failure to appear
may result in a decision adverse to the party.
(3) The court may enter any orders necessary to ensure the safety of the child and of any
person ordered to appear under this section.
(4) If a party to a child custody proceeding who is outside this state is directed to appear
under Subsection (2) or desires to appear personally before the court with or without the child, the
court may require another party to pay reasonable and necessary travel and other expenses of the
party so appearing and of the child.
Section 23. Section 78-45c-301 is enacted to read:
78-45c-301. Definitions.
As used in this part:
(1) "Petitioner" means a person who seeks enforcement of a child custody determination or
enforcement of an order for the return of the child under the Hague Convention on the Civil Aspects
of International Child Abduction.
(2) "Respondent" means a person against whom a proceeding has been commenced for
enforcement of a child custody determination or enforcement of an order for the return of the child
under the Hague Convention on the Civil Aspects of International Child Abduction.
Section 24. Section 78-45c-302 is enacted to read:
78-45c-302. Scope -- Hague Convention Enforcement.
This chapter may be invoked to enforce:
(1) a child custody determination; and
(2) an order for the return of the child made under the Hague Convention on the Civil
Aspects of International Child Abduction.
Section 25. Section 78-45c-303 is enacted to read:
78-45c-303. Duty to enforce.
(1) A court of this state shall recognize and enforce a child custody determination of a court
of another state if the latter court exercised jurisdiction that was in substantial conformity with this
chapter or the determination was made under factual circumstances meeting the jurisdictional
standards of this chapter and the determination has not been modified in accordance with this chapter.
(2) A court may utilize any remedy available under other law of this state to enforce a child
custody determination made by a court of another state. The procedure provided by this part does
not affect the availability of other remedies to enforce a child custody determination.
Section 26. Section 78-45c-304 is enacted to read:
78-45c-304. Temporary visitation.
(1) A court of this state which does not have jurisdiction to modify a child custody
determination, may issue a temporary order enforcing:
(a) a visitation schedule made by a court of another state; or
(b) the visitation provisions of a child custody determination of another state that does not
provide for a specific visitation schedule.
(2) If a court of this state makes an order under Subsection (1)(b), it shall specify in the order
a period that it considers adequate to allow the petitioner to obtain an order from a court having
jurisdiction under the criteria specified in Part 2, Jurisdiction. The order remains in effect until an
order is obtained from the other court or the period expires.
Section 27. Section 78-45c-305 is enacted to read:
78-45c-305. Registration of child custody determination.
(1) A child custody determination issued by a court of another state may be registered in this
state, with or without a simultaneous request for enforcement, by sending to the district court in this
state:
(a) a letter or other document requesting registration;
(b) two copies, including one certified copy, of the determination sought to be registered, and
a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking
registration the order has not been modified; and
(c) except as otherwise provided in Section 78-45c-209 , the name and address of the person
seeking registration and any parent or person acting as a parent who has been awarded custody or
visitation in the child custody determination sought to be registered.
(2) On receipt of the documents required by Subsection (1), the registering court shall:
(a) cause the determination to be filed as a foreign judgment, together with one copy of any
accompanying documents and information, regardless of their form; and
(b) serve notice upon the persons named pursuant to Subsection (1)(c) and provide them with
an opportunity to contest the registration in accordance with this section.
(3) The notice required by Subsection (2)(b) shall state:
(a) that a registered determination is enforceable as of the date of the registration in the same
manner as a determination issued by a court of this state;
(b) that a hearing to contest the validity of the registered determination shall be requested
within 20 days after service of notice; and
(c) that failure to contest the registration will result in confirmation of the child custody
determination and preclude further contest of that determination with respect to any matter that could
have been asserted.
(4) A person seeking to contest the validity of a registered order shall request a hearing
within 20 days after service of the notice. At that hearing, the court shall confirm the registered order
unless the person contesting registration establishes that:
(a) the issuing court did not have jurisdiction under Part 2, Jurisdiction;
(b) the child custody determination sought to be registered has been vacated, stayed, or
modified by a court of a state having jurisdiction to do so under Part 2, Jurisdiction; or
(c) the person contesting registration was entitled to notice, but notice was not given in
accordance with the standards of Section 78-45c-108 in the proceedings before the court that issued
the order for which registration is sought.
(5) If a timely request for a hearing to contest the validity of the registration is not made, the
registration is confirmed as a matter of law and the person requesting registration and all persons
served shall be notified of the confirmation.
(6) Confirmation of a registered order, whether by operation of law or after notice and
hearing, precludes further contest of the order with respect to any matter which could have been
asserted at the time of registration.
Section 28. Section 78-45c-306 is enacted to read:
78-45c-306. Enforcement of registered determination.
(1) A court of this state may grant any relief normally available under the law of this state to
enforce a registered child custody determination made by a court of another state.
(2) A court of this state shall recognize and enforce, but may not modify except in accordance
with Part 2, Jurisdiction, a registered child custody determination of another state.
Section 29. Section 78-45c-307 is enacted to read:
78-45c-307. Simultaneous proceedings.
If a proceeding for enforcement under this part has been or is commenced in this state and a
court of this state determines that a proceeding to modify the determination has been commenced in
another state having jurisdiction to modify the determination under Part 2, Jurisdiction, the enforcing
court shall immediately communicate with the modifying court. The proceeding for enforcement
continues unless the enforcing court, after consultation with the modifying court, stays or dismisses
the proceeding.
Section 30. Section 78-45c-308 is enacted to read:
78-45c-308. Expedited enforcement of child custody determination.
(1) A petition under this part shall be verified. Certified copies of all orders sought to be
enforced and of the order confirming registration, if any, shall be attached to the petition. A copy of
a certified copy of an order may be attached instead of the original.
(2) A petition for enforcement of a child custody determination shall state:
(a) whether the court that issued the determination identified the jurisdictional basis it relied
upon in exercising jurisdiction and, if so, what the basis was;
(b) whether the determination for which enforcement is sought has been vacated, stayed, or
modified by a court whose decision shall be enforced under this chapter or federal law and, if so,
identify the court, the case number of the proceeding, and the action taken;
(c) whether any proceeding has been commenced that could affect the current proceeding,
including proceedings relating to domestic violence, protective orders, termination of parental rights,
and adoptions and, if so, identify the court and the case number and the nature of the proceeding;
(d) the present physical address of the child and the respondent, if known; and
(e) whether relief in addition to the immediate physical custody of the child and attorney's
fees is sought, including a request for assistance from law enforcement officials and, if so, the relief
sought.
(3) If the child custody determination has been registered and confirmed under Section
78-45c-305 , the petition shall also state the date and place of registration.
(4) The court shall issue an order directing the respondent to appear with or without the child
at a hearing and may enter any orders necessary to ensure the safety of the parties and the child.
(5) The hearing shall be held on the next judicial day following service of process unless that
date is impossible. In that event, the court shall hold the hearing on the first day possible. The court
may extend the date of hearing at the request of the petitioner.
(6) The order shall state the time and place of the hearing and shall advise the respondent that
at the hearing the court will order the delivery of the child and the payment of fees, costs, and
expenses under Section 78-45c-312 , and may set an additional hearing to determine whether further
relief is appropriate, unless the respondent appears and establishes that:
(a) the child custody determination has not been registered and confirmed under Section
78-45c-305 , and that:
(i) the issuing court did not have jurisdiction under Part 2, Jurisdiction;
(ii) the child custody determination for which enforcement is sought has been vacated, stayed,
or modified by a court of a state having jurisdiction to do so under Part 2, Jurisdiction, or federal law;
or
(iii) the respondent was entitled to notice, but notice was not given in accordance with the
standards of Section 78-45c-108 in the proceedings before the court that issued the order for which
enforcement is sought; or
(b) the child custody determination for which enforcement is sought was registered and
confirmed under Section 78-45c-305 , but has been vacated, stayed, or modified by a court of a state
having jurisdiction to do so under Part 2, Jurisdiction, or federal law.
Section 31. Section 78-45c-309 is enacted to read:
78-45c-309. Service of petition and order.
Except as otherwise provided in Section 78-45c-311 , the petition and order shall be served,
by any method authorized by the law of this state, upon respondent and any person who has physical
custody of the child.
Section 32. Section 78-45c-310 is enacted to read:
78-45c-310. Hearing and order.
(1) Unless the court enters a temporary emergency order pursuant to Section 78-45c-204 ,
upon a finding that a petitioner is entitled to the physical custody of the child immediately, the court
shall order the child delivered to the petitioner unless the respondent establishes that:
(a) the child custody determination has not been registered and confirmed under Section
78-45c-305 , and that:
(i) the issuing court did not have jurisdiction under Part 2, Jurisdiction;
(ii) the child custody determination for which enforcement is sought has been vacated, stayed,
or modified by a court of a state having jurisdiction to do so under Part 2, Jurisdiction, or federal law;
or
(iii) the respondent was entitled to notice, but notice was not given in accordance with the
standards of Section 78-45c-108 in the proceedings before the court that issued the order for which
enforcement is sought; or
(b) the child custody determination for which enforcement is sought was registered and
confirmed under Section 78-45c-305 , but has been vacated, stayed, or modified by a court of a state
having jurisdiction to do so under Part 2, Jurisdiction, or federal law.
(2) The court shall award the fees, costs, and expenses authorized under Section 78-45c-312
and may grant additional relief, including a request for the assistance of law enforcement officials, and
set a further hearing to determine whether additional relief is appropriate.
(3) If a party called to testify refuses to answer on the ground that the testimony may be
self-incriminating, the court may draw an adverse inference from the refusal.
(4) A privilege against disclosure of communications between spouses and a defense of
immunity based on the relationship of husband and wife or parent and child may not be invoked in
a proceeding under this chapter.
Section 33. Section 78-45c-311 is enacted to read:
78-45c-311. Writ to take physical custody of child.
(1) Upon the filing of a petition seeking enforcement of a child custody determination, the
petitioner may file a verified application for the issuance of a writ of assistance to take physical
custody of the child if the child is likely to suffer serious imminent physical harm or removal from this
state.
(2) If the court, upon the testimony of the petitioner or other witness, finds that the child is
likely to suffer serious imminent physical harm or be imminently removed from this state, it may issue
a writ of assistance to take physical custody of the child. The petition shall be heard within 72 hours
after the writ is executed. The writ shall include the statements required by Subsection
78-45c-308 (2).
(3) A writ to take physical custody of a child shall:
(a) recite the facts upon which a conclusion of serious imminent physical harm or removal
from the jurisdiction is based;
(b) direct law enforcement officers to take physical custody of the child immediately; and
(c) provide for the placement of the child pending final relief.
(4) The respondent shall be served with the petition, writ, and order immediately after the
child is taken into physical custody.
(5) A writ of assistance to take physical custody of a child is enforceable throughout this
state. If the court finds on the basis of the testimony of the petitioner or other witness that a less
intrusive remedy is not effective, it may authorize law enforcement officers to enter private property
to take physical custody of the child. If required by the exigency of the case, the court may authorize
law enforcement officers to make a forcible entry at any hour.
(6) The court may impose conditions upon placement of a child to ensure the appearance of
the child and the child's custodian.
Section 34. Section 78-45c-312 is enacted to read:
78-45c-312. Costs, fees, and expenses.
(1) The court shall award the prevailing party, including a state, necessary and reasonable
expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's
fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of
the proceedings, unless the party from whom fees or expenses are sought establishes that the award
would be clearly inappropriate.
(2) The court may not assess fees, costs, or expenses against a state except as otherwise
provided by law other than this chapter.
Section 35. Section 78-45c-313 is enacted to read:
78-45c-313. Recognition and enforcement.
A court of this state shall accord full faith and credit to an order made consistently with this
chapter which enforces a child custody determination by a court of another state unless the order has
been vacated, stayed, or modified by a court authorized to do so under Part 2, Jurisdiction.
Section 36. Section 78-45c-314 is enacted to read:
78-45c-314. Appeals.
An appeal may be taken from a final order in a proceeding under this chapter in accordance
with expedited appellate procedures in other civil cases. Unless the court enters a temporary
emergency order under Section 78-45c-204 , the enforcing court may not stay an order enforcing a
child custody determination pending appeal.
Section 37. Section 78-45c-315 is enacted to read:
78-45c-315. Role of prosecutor or attorney general.
(1) In a case arising under this chapter or involving the Hague Convention on the Civil
Aspects of International Child Abduction, the prosecutor or Attorney General may take any lawful
action, including resort to a proceeding under this chapter or any other available civil proceeding to
locate a child, obtain the return of a child, or enforce a child custody determination if there is:
(a) an existing child custody determination;
(b) a request from a court in a pending child custody case;
(c) a reasonable belief that a criminal statute has been violated; or
(d) a reasonable belief that the child has been wrongfully removed or retained in violation of
the Hague Convention on the Civil Aspects of International Child Abduction.
(2) A prosecutor or attorney general acts on behalf of the court and may not represent any
party to a child custody determination.
Section 38. Section 78-45c-316 is enacted to read:
78-45c-316. Role of law enforcement.
At the request of a prosecutor or the Attorney General acting under Section 78-45c-315 , a
law enforcement officer may take any lawful action reasonably necessary to locate a child or a party
and assist a prosecutor or Attorney General with responsibilities under Section 78-45c-315 .
Section 39. Section 78-45c-317 is enacted to read:
78-45c-317. Costs and expenses.
If the respondent is not the prevailing party, the court may assess against the respondent all
direct expenses and costs incurred by the prosecutor or Attorney General and law enforcement
officers under Section 78-45c-315 or 78-45c-316 .
Section 40. Section 78-45c-318 is enacted to read:
78-45c-318. Transitional provision.
A motion or other request for relief made in a child custody or enforcement proceeding which
was commenced before the effective date of this chapter is governed by the law in effect at the time
the motion or other request was made.
Section 41. Repealer.
This act repeals:
Section 78-45c-1, Purposes -- Construction.
Section 78-45c-2, Definitions.
Section 78-45c-3, Bases of jurisdiction in this state.
Section 78-45c-4, Persons to be notified and heard.
Section 78-45c-5, Service of notice outside state -- Proof of service -- Submission to
jurisdiction.
Section 78-45c-6, Proceedings pending elsewhere -- Jurisdiction not exercised -- Inquiry
to other state -- Information exchange -- Stay of proceeding on notice of another proceeding.
Section 78-45c-7, Declining jurisdiction on finding of inconvenient forum -- Factors in
determination -- Communication with other court -- Awarding costs.
Section 78-45c-8, Misconduct of petitioner as basis for refusing jurisdiction -- Notice to
another jurisdiction -- Ordering petitioner to appear in other court or to return child
--Awarding costs.
Section 78-45c-9, Information as to custody of child and litigation concerning required
in pleadings -- Verification -- Continuing duty to inform court.
Section 78-45c-10, Joinder of persons having custody or claiming custody or visitation
rights.
Section 78-45c-11, Ordering party to appear -- Enforcement -- Out-of-state party --
Travel and other expenses.
Section 78-45c-12, Parties bound by custody decree -- Conclusive unless modified.
Section 78-45c-13, Recognition and enforcement of foreign decrees.
Section 78-45c-14, Modification of foreign decree -- Prerequisites -- Factors considered.
Section 78-45c-15, Filing foreign decree -- Effect -- Enforcement -- Award of expenses.
Section 78-45c-16, Registry maintained by clerk of court -- Documents entered.
Section 78-45c-17, Certified copies of decrees furnished by clerk of court.
Section 78-45c-18, Taking testimony of persons in other states.
Section 78-45c-19, Request to court of another state to take evidence, to make studies
or to order appearance of party -- Payment of costs.
Section 78-45c-20, Taking evidence for use in court of another state -- Ordering
appearance in another state -- Costs -- Enforcement.
Section 78-45c-21, Preservation of records of proceedings -- Furnishing copies to other
state courts.
Section 78-45c-22, Requesting court records from another state.
Section 78-45c-23, Foreign countries -- Application of general policies.
Section 78-45c-24, Priority on court calendar.
Section 78-45c-25, Notices -- Orders to appear -- Manner of service.
Section 78-45c-26, Short title.
Section 42. Effective date.
This act takes effect on July 1, 2000.
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