S.B. 136

1

PARENTING PLAN FOR DIVORCING
2 PARENTS
3 2001 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Lyle W. Hillyard
6 This act modifies the joint custody provisions to require that a parenting plan be provided
7 by parents requesting joint custody of minor children. The act defines a parenting plan,
8 provides objectives, and prescribes requirements for filing a parenting plan. It also requires
9 the designation of a dispute resolution process for any breakdown of the agreement.
10 This act affects sections of Utah Code Annotated 1953 as follows:
11 AMENDS:
12 30-3-10.2, as last amended by Chapter 174, Laws of Utah 1997
13 30-3-10.3, as last amended by Chapter 167, Laws of Utah 1994
14 ENACTS:
15 30-3-10.7, Utah Code Annotated 1953
16 30-3-10.8, Utah Code Annotated 1953
17 30-3-10.9, Utah Code Annotated 1953
18 Be it enacted by the Legislature of the state of Utah:
19 Section 1. Section 30-3-10.2 is amended to read:
20 30-3-10.2. Joint legal custody order -- Factors for court determination -- Public
21 assistance.
22 (1) The court may order joint legal custody if the parents have filed a parenting plan in
23 accordance with Section 30-3-10.8 and it determines that joint legal custody is in the best interest
24 of the child [and:].
25 [(a) both parents agree to an order of joint legal custody; or]
26 [(b) both parents appear capable of implementing joint legal custody.]
27 (2) In determining whether the best interest of a child will be served by ordering joint legal

28 custody, the court shall consider the following factors:
29 (a) whether the physical, psychological, and emotional needs and development of the child
30 will benefit from joint legal custody;
31 (b) the ability of the parents to give first priority to the welfare of the child and reach
32 shared decisions in the child's best interest;
33 (c) whether each parent is capable of encouraging and accepting a positive relationship
34 between the child and the other parent;
35 (d) whether both parents participated in raising the child before the divorce;
36 (e) the geographical proximity of the homes of the parents;
37 (f) the preference of the child if the child is of sufficient age and capacity to reason so as
38 to form an intelligent preference as to joint legal custody;
39 (g) the maturity of the parents and their willingness and ability to protect the child from
40 conflict that may arise between the parents; and
41 (h) any other factors the court finds relevant.
42 (3) The determination of the best interest of the child shall be by a preponderance of the
43 evidence.
44 (4) The court shall inform both parties that:
45 (a) an order for joint legal custody may preclude eligibility for cash assistance provided
46 under Title 35A, Chapter 3, Employment Support Act; and
47 (b) if cash assistance is required for the support of children of the parties at any time
48 subsequent to an order of joint legal custody, the order may be terminated under Section 30-3-10.4 .
49 [(5) The court may order that where possible the parties attempt to settle future disputes
50 by a dispute resolution method before seeking enforcement or modification of the terms and
51 conditions of the order of joint legal custody through litigation, except in emergency situations
52 requiring ex parte orders to protect the child.]
53 Section 2. Section 30-3-10.3 is amended to read:
54 30-3-10.3. Terms of joint legal custody order.
55 (1) Unless the court orders otherwise, before a final order of joint legal custody is entered
56 both parties shall attend the mandatory course for divorcing parents, as provided in Section
57 30-3-11.3 , and present a certificate of completion from the course to the court.
58 (2) An order of joint legal custody shall provide terms the court determines appropriate,

59 which may include specifying:
60 (a) either the county of residence of the child, until altered by further order of the court,
61 or the custodian who has the sole legal right to determine the residence of the child;
62 (b) that the parents shall exchange information concerning the health, education, and
63 welfare of the child, and where possible, confer before making decisions concerning any of these
64 areas;
65 (c) the rights and duties of each parent regarding the child's present and future physical
66 care, support, and education;
67 (d) provisions to minimize disruption of the child's attendance at school and other
68 activities, his daily routine, and his association with friends; and
69 (e) as necessary, the remaining parental rights, privileges, duties, and powers to be
70 exercised by the parents solely, concurrently, or jointly.
71 (3) The court shall, where possible, include in the order the terms [agreed to between the
72 parties] of the parenting plan provided in accordance with Section 30-3-10.8 .
73 (4) Any parental rights not specifically addressed by the court order may be exercised by
74 the parent having physical custody of the child the majority of the time.
75 (5) (a) The appointment of joint legal custodians does not impair or limit the authority of
76 the court to order support of the child, including payments by one custodian to the other.
77 (b) An order of joint legal custody, in itself, is not grounds for modifying a support order.
78 (c) The agreement [may] shall contain a dispute resolution procedure the parties agree to
79 use before seeking enforcement or modification of the terms and conditions of the order of joint
80 legal custody through litigation, except in emergency situations requiring ex parte orders to protect
81 the child.
82 Section 3. Section 30-3-10.7 is enacted to read:
83 30-3-10.7. Parenting plan -- Definitions.
84 (1) "Parenting plan" means a plan for parenting a child, including allocation of parenting
85 functions, which is incorporated in any final decree or decree of modification in an action for
86 dissolution of marriage, annulment, legal separation, or paternity.
87 (2) "Parenting functions" means those aspects of the parent-child relationship in which the
88 parent makes decisions and performs functions necessary for the care and growth of the child.
89 Parenting functions include:

90 (a) maintaining a loving, stable, consistent, and nurturing relationship with the child;
91 (b) attending to the daily needs of the child, such as feeding, clothing, physical care,
92 grooming, supervision, health care, day care, and engaging in other activities which are appropriate
93 to the developmental level of the child and that are within the social and economic circumstances
94 of the particular family;
95 (c) attending to adequate education for the child, including remedial or other education
96 essential to the best interest of the child;
97 (d) assisting the child in developing and maintaining appropriate interpersonal
98 relationships;
99 (e) exercising appropriate judgment regarding the child's welfare, consistent with the
100 child's developmental level and family social and economic circumstances; and
101 (f) providing for the financial support of the child.
102 Section 4. Section 30-3-10.8 is enacted to read:
103 30-3-10.8. Parenting plan -- Filing -- Modifications.
104 (1) In any proceeding under this chapter, including actions for paternity, any party
105 requesting joint custody, joint legal or physical custody, or any other type of shared parenting
106 arrangement, shall file and serve a proposed parenting plan at the time of the filing of their original
107 petition or at the time of filing their answer or counterclaim.
108 (2) In proceedings for a modification of custody provisions or modification of a parenting
109 plan, a proposed parenting plan shall be filed and served with the petition to modify, or the answer
110 or counterclaim to the petition to modify.
111 (3) A party who files a proposed parenting plan in compliance with this section may move
112 the court for an order of default to adopt the plan if the other party fails to file a proposed parenting
113 plan as required by this section.
114 (4) Either party may file and serve an amended proposed parenting plan according to the
115 rules for amending pleadings.
116 (5) The parent submitting a proposed parenting plan shall attach a verified statement that
117 the plan is proposed by that parent in good faith.
118 (6) Both parents may submit a parenting plan which has been agreed upon. A verified
119 statement, signed by both parents, shall be attached.
120 Section 5. Section 30-3-10.9 is enacted to read:

121 30-3-10.9. Parenting plan -- Objectives -- Required provisions -- Dispute resolution.
122 (1) The objectives of a parenting plan are to:
123 (a) provide for the child's physical care;
124 (b) maintain the child's emotional stability;
125 (c) provide for the child's changing needs as the child grows and matures in a way that
126 minimizes the need for future modifications to the parenting plan;
127 (d) set forth the authority and responsibilities of each parent with respect to the child
128 consistent with the definitions outlined in this chapter;
129 (e) minimize the child's exposure to harmful parental conflict;
130 (f) encourage the parents, where appropriate, to meet the responsibilities to their minor
131 children through agreements in the parenting plan rather than relying on judicial intervention; and
132 (g) protect the best interests of the child.
133 (2) The parenting plan shall contain provisions for resolution of future disputes between
134 the parents, allocation of decision-making authority, and residential provisions for the child. It
135 may contain other provisions comparable to those in Sections 30-3-5 and 30-3-10.3 regarding the
136 welfare of the child.
137 (3) A process for resolving disputes shall be provided unless precluded or limited by
138 statute. A dispute resolution process may include:
139 (a) counseling;
140 (b) mediation or arbitration by a specified individual or agency; or
141 (c) court action.
142 (4) In the dispute resolution process:
143 (a) preference shall be given to the provisions in the parenting plan;
144 (b) parents shall use the designated process to resolve disputes relating to implementation
145 of the plan, except those related to financial support, unless an emergency exists;
146 (c) a written record shall be prepared of any agreement reached in counseling or mediation
147 and provided to each party;
148 (d) if arbitration becomes necessary, a written record shall be prepared and a copy of the
149 arbitration award shall be provided to each party;
150 (e) if the court finds that a parent has used or frustrated the dispute resolution process
151 without good reason, the court shall award attorney's fees and financial sanctions to the prevailing

152 parent;
153 (f) the district court shall have the right of review from the dispute resolution process; and
154 (g) the provisions of this Subsection (4) shall be set forth in any final decree or order.
155 (5) The parenting plan shall allocate decision-making authority to one or both parties
156 regarding the children's education, health care, and religious upbringing. The parties may
157 incorporate an agreement related to the care and growth of the children in these specified areas or
158 in other areas into their plan, consistent with the criteria outlined in Subsections 30-3-10.7 (2) and
159 30-3-10.9 (1). Regardless of the allocation of decision-making in the parenting plan, either parent
160 may make emergency decisions affecting the health or safety of the child.
161 (6) Each parent may make decisions regarding the day-to-day care and control of the child
162 while the child is residing with that parent.
163 (7) When mutual decision-making is designated but cannot be achieved, the parties shall
164 make a good faith effort to resolve the issue through the dispute resolution process.
165 (8) The plan shall include a residential schedule which designates in which parent's home
166 each minor child shall reside on given days of the year, including provisions for holidays, birthdays
167 of family members, vacations, and other special occasions.
168 (9) If a parent fails to comply with a provision of the parenting plan or a child support
169 order, the other parent's obligations under the parenting plan or the child support order are not
170 affected. Failure to comply with a provision of the parenting plan or a child support order may
171 result in a finding of contempt of court.




Legislative Review Note
as of 1-19-01 8:23 AM

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

Office of Legislative Research and General Counsel