H.B. 87

1

DIVORCE AND CUSTODY PROCEEDINGS
2 2004 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Jackie Biskupski
5
6 LONG TITLE
7 General Description:
8 This bill changes the statute to allow a child 12 or older to testify in a divorce
9 proceeding if he expresses a desire to do so.
10 Highlighted Provisions:
11 This bill:
12 . changes Section 30-3-10 to allow for testimony to be taken from a child 12 years of
13 age or older in divorce proceedings.
14 Monies Appropriated in this Bill:
15 None
16 Other Special Clauses:
17 None
18 Utah Code Sections Affected:
19 AMENDS:
20 30-3-10, as last amended by Chapter 269, Laws of Utah 2003
21
22 Be it enacted by the Legislature of the state of Utah:
23 Section 1. Section 30-3-10 is amended to read:
24 30-3-10. Custody of children in case of separation or divorce -- Custody
25 consideration.
26 (1) If a husband and wife having minor children are separated, or their marriage is
27 declared void or dissolved, the court shall make an order for the future care and custody of the

28 minor children as it considers appropriate.
29 (a) In determining any form of custody, the court shall consider the best interests of the
30 child and, among other factors the court finds relevant, the following:
31 (i) the past conduct and demonstrated moral standards of each of the parties;
32 (ii) which parent is most likely to act in the best interest of the child, including
33 allowing the child frequent and continuing contact with the noncustodial parent; and
34 (iii) those factors outlined in Section 30-3-10.2 .
35 (b) The court shall, in every case, consider joint custody but may award any form of
36 custody which is determined to be in the best interest of the child.
37 (c) The children may not be required by either party to testify unless the trier of fact
38 determines that extenuating circumstances exist that would necessitate the testimony of the
39 children be heard and there is no other reasonable method to present their testimony. The court
40 may allow testimony from a child 12 years of age or older who expresses a desire to testify.
41 (d) The court may inquire of the children and take into consideration the children's
42 desires regarding future custody or parent-time schedules, but the expressed desires are not
43 controlling and the court may determine the children's custody or parent-time otherwise. The
44 desires of a child 16 years of age or older shall be given added weight, but is not the single
45 controlling factor.
46 (e) If interviews with the children are conducted by the court pursuant to Subsection
47 (1)(d), they shall be conducted by the judge in camera. The prior consent of the parties may be
48 obtained but is not necessary if the court finds that an interview with the children is the only
49 method to ascertain the child's desires regarding custody.
50 (2) In awarding custody, the court shall consider, among other factors the court finds
51 relevant, which parent is most likely to act in the best interests of the child, including allowing
52 the child frequent and continuing contact with the noncustodial parent as the court finds
53 appropriate.
54 (3) If the court finds that one parent does not desire custody of the child, or has
55 attempted to permanently relinquish custody to a third party, it shall take that evidence into
56 consideration in determining whether to award custody to the other parent.
57 (4) (a) A court may not discriminate against a parent due to a disability, as defined in
58 Section 57-21-2 , in awarding custody or determining whether a substantial change has occurred

59 for the purpose of modifying an award of custody.
60 (b) If a court takes a parent's disability into account in awarding custody or determining
61 whether a substantial change has occurred for the purpose of modifying an award of custody,
62 the parent with a disability may rebut any evidence, presumption, or inference arising
63 therefrom by showing that:
64 (i) the disability does not significantly or substantially inhibit the parent's ability to
65 provide for the physical and emotional needs of the child at issue; or
66 (ii) the parent with a disability has sufficient human, monetary, or other resources
67 available to supplement the parent's ability to provide for the physical and emotional needs of
68 the child at issue.
69 (c) Nothing in this section may be construed to apply to:
70 (i) abuse, neglect, or dependency proceedings under Title 62A, Chapter 4a, Child and
71 Family Services, or Title 78, Chapter 3a, Juvenile Court Act of 1996; or
72 (ii) adoption proceedings under Title 78, Chapter 30, Adoption.
73 (5) This section establishes neither a preference nor a presumption for or against joint
74 legal custody, joint physical custody, or sole custody, but allows the court and the family the
75 widest discretion to choose a parenting plan that is in the best interest of the child.




Legislative Review Note
as of 12-5-03 10:12 AM

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

Office of Legislative Research and General Counsel