H.B. 37

1

PARENT-TIME AMENDMENTS
2 2002 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: James A. Ferrin
5 This act modifies provisions relating to Divorce and Parent-time. It prohibits courts from
6 considering gender when determining custody in a divorce and specifies considerations for
7 the court in determining parent-time. In addition, this act revises the parent-time sanctions
8 found in the Judicial Code.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 30-3-10, as last amended by Chapter 255, Laws of Utah 2001
12 REPEALS AND REENACTS:
13 78-32-12.2, as last amended by Chapter 255, Laws of Utah 2001
14 Be it enacted by the Legislature of the state of Utah:
15 Section 1. Section 30-3-10 is amended to read:
16 30-3-10. Custody of children in case of separation or divorce -- Custody
17 consideration.
18 (1) If a husband and wife having minor children are separated, or their marriage is declared
19 void or dissolved, the court shall make an order for the future care and custody of the minor
20 children as it considers appropriate. In determining custody, the court shall consider the best
21 interests of the child [and the past conduct and demonstrated moral standards of each of the
22 parties]. The court may inquire of the children and take into consideration the children's desires
23 regarding future custody or parent-time schedules, but the expressed desires are not controlling and
24 the court may determine the children's custody or parent-time otherwise. Interviews with the
25 children may be conducted by the judge in camera only with the prior consent of the parties.
26 (2) In determining and awarding custody, the court shall consider[, among other factors
27 the court finds relevant,]:

28 (a) which parent is most likely to act in the best interests of the child, including allowing
29 the child frequent and continuing contact with the noncustodial parent [as the court finds
30 appropriate.];
31 (b) the past conduct and demonstrated moral standards of each of the parties;
32 (c) the financial stability of the parties;
33 (d) past felony convictions of either party;
34 (e) past drug or alcohol abuse of either party; and
35 (f) any other factors the court finds relevant.
36 (3) The court may not consider the gender of the parties in determining custody.
37 [(3)] (4) If the court finds that one parent does not desire custody of the child, or has
38 attempted to permanently relinquish custody to a third party, it shall take that evidence into
39 consideration in determining whether to award custody to the other parent.
40 [(4)] (5) (a) A court may not discriminate against a parent due to a disability, as defined
41 in Section 57-21-2 , in awarding custody or determining whether a substantial change has occurred
42 for the purpose of modifying an award of custody.
43 (b) If a court takes a parent's disability into account in awarding custody or determining
44 whether a substantial change has occurred for the purpose of modifying an award of custody, the
45 parent with a disability may rebut any evidence, presumption, or inference arising therefrom by
46 showing that:
47 (i) the disability does not significantly or substantially inhibit the parent's ability to provide
48 for the physical and emotional needs of the child at issue; or
49 (ii) the parent with a disability has sufficient human, monetary, or other resources available
50 to supplement the parent's ability to provide for the physical and emotional needs of the child at
51 issue.
52 (c) Nothing in this section may be construed to apply to:
53 (i) abuse, neglect, or dependency proceedings under Title 62A, Chapter 4a, Child and
54 Family Services, or Title 78, Chapter 3a, Juvenile Courts; or
55 (ii) adoption proceedings under Title 78, Chapter 30, Adoption.
56 Section 2. Section 78-32-12.2 is repealed and reenacted to read:
57 78-32-12.2. Definitions -- Sanctions.
58 (1) For purposes of this section:

59 (a) "Make up parent-time" means parent-time which is:
60 (i) of the same type and duration of parent-time as that which was denied, including
61 parent-time during weekdays, weekends, holidays, and during extended parent-time periods;
62 (ii) to be made up within one year after the court has entered its order of make up
63 parent-time; and
64 (iii) in the manner chosen by the aggrieved parent if it is in the best interest of the child.
65 (b) "Parent-time enforcement order" means an order to enforce compliance with a
66 parent-time order through the use of sanctions.
67 (c) "Substantial noncompliance" means:
68 (i) conduct which significantly interferes with a court-ordered parent-time schedule;
69 (ii) conduct which interferes with parent's right to frequent, meaningful, and continuing
70 access with his child and which significantly impairs the parent-child relationship; or
71 (iii) a conviction under Section 76-5-303 .
72 (2) Either parent may petition the court for an order enforcing a parent-time order without
73 the need to attend mediation prior to approaching the court.
74 (3) Upon receipt of an initial petition, the court shall hold a hearing to determine by a
75 preponderance of the evidence whether there has been a substantial noncompliance with the
76 parent-time order.
77 (4) Upon a finding of substantial noncompliance, the court shall order:
78 (a) actual costs including actual attorney fees and court costs to the prevailing party;
79 (b) make up parent-time for the aggrieved parent and child;
80 (c) a minimum of ten hours of compensatory service as provided in Subsection
81 78-32-12.1 (1)(a); and
82 (d) a permanent injunction enjoining the noncompliance with the court's parent-time order.
83 (5) Upon a finding of substantial noncompliance, the court may order:
84 (a) mediation with the requirement to report back to the court on the results of mediation
85 within 30 days;
86 (b) participation in workshops, classes, or individual counseling to educate the parent
87 about the importance of complying with the court order and providing the child with a continuing
88 relationship with both parents as provided in Subsection 78-32-12.1 (1)(b); or
89 (c) a temporary change of custody for a duration to be determined by the court if it is in

90 the best interests of the child.
91 (6) If the court found substantial noncompliance in the first petition and a second petition
92 is filed within five years of the initial petition against the same party the initial petition was filed
93 against, the court may order increased sanctions that include:
94 (a) up to 20 hours of compensatory service as provided in Subsection 78-32-12.1 (1)(a);
95 (b) make up parent-time for the aggrieved party and child at twice the amount of time
96 previously wrongfully denied and under the same conditions as provided in Subsection
97 78-32-12.2 (1)(a);
98 (c) a permanent change of custody if it is in the best interests of the child;
99 (d) jail time or incarceration for up to ten days; or
100 (e) any other orders the court determines necessary to enforce a parent-time order.
101 (7) If the court found substantial noncompliance in the first and second petition and a third
102 petition is brought against the same party within five years of the second petition and the court
103 declines to issue an order with increased sanctions although the petitioner has met the burden of
104 proof, the court shall provide findings on the record explaining why increased sanctions were not
105 imposed.
106 (8) The noncustodial parent shall give the court and the custodial parent written notice of
107 his intention to exercise the make up parent-time at least seven days before the proposed visit if
108 it is to be on a weekday or weekend, and at least 30 days before the proposed visit if it is to be on
109 a holiday or an extended parent-time period.
110 (9) The court shall suspend any proceedings under Section 78-32-12.2 if substantial
111 allegations of child abuse or child sexual abuse are under investigation or a case is pending in the
112 courts on the allegations.
113 (10) The filing of any petition under this section which is found to be without merit and
114 not asserted or defended against in good faith shall be subject to sanctions as determined by the
115 court.

Legislative Review Note
as of 11-15-01 1:35 PM

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

Office of Legislative Research and General Counsel

Committee Note

The Judiciary Interim Committee recommended this bill.