H.B. 280

1

JOINT CUSTODY AMENDMENTS
2 2005 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: LaVar Christensen
5
6 LONG TITLE
7 General Description:
8 This bill modifies joint custody options.
9 Highlighted Provisions:
10 This bill:
11 . changes the reference of "decree" to "order";
12 . allows the court to order joint legal custody or joint physical custody if one or both
13 of the parents have filed a parenting plan in accordance with Section 30-3-10.8; and
14 . requires a parent seeking to modify any type of shared parenting plan to submit a
15 proposed parenting plan with the petition.
16 Monies Appropriated in this Bill:
17 None
18 Other Special Clauses:
19 None
20 Utah Code Sections Affected:
21 AMENDS:
22 30-3-10.2, as last amended by Chapters 176 and 269, Laws of Utah 2003
23 30-3-10.4, as last amended by Chapter 255, Laws of Utah 2001
24 30-3-10.7, as enacted by Chapter 126, Laws of Utah 2001
25
26 Be it enacted by the Legislature of the state of Utah:
27 Section 1. Section 30-3-10.2 is amended to read:

28 30-3-10.2. Joint custody order -- Factors for court determination -- Public
29 assistance.
30 (1) The court may order joint legal custody or joint physical custody or both if [the]
31 one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it
32 determines that joint legal custody or joint physical custody or both is in the best interest of the
33 child.
34 (2) In determining whether the best interest of a child will be served by ordering joint
35 legal or physical custody, the court shall consider the following factors:
36 (a) whether the physical, psychological, and emotional needs and development of the
37 child will benefit from joint legal or physical custody;
38 (b) the ability of the parents to give first priority to the welfare of the child and reach
39 shared decisions in the child's best interest;
40 (c) whether each parent is capable of encouraging and accepting a positive relationship
41 between the child and the other parent, including the sharing of love, affection, and contact
42 between the child and the other parent;
43 (d) whether both parents participated in raising the child before the divorce;
44 (e) the geographical proximity of the homes of the parents;
45 (f) the preference of the child if the child is of sufficient age and capacity to reason so
46 as to form an intelligent preference as to joint legal or physical custody;
47 (g) the maturity of the parents and their willingness and ability to protect the child from
48 conflict that may arise between the parents;
49 (h) the past and present ability of the parents to cooperate with each other and make
50 decisions jointly;
51 (i) any history of, or potential for, child abuse, spouse abuse, or kidnaping; and
52 (j) any other factors the court finds relevant.
53 (3) The determination of the best interest of the child shall be by a preponderance of
54 the evidence.
55 (4) The court shall inform both parties that an order for joint physical custody may
56 preclude eligibility for cash assistance provided under Title 35A, Chapter 3, Employment
57 Support Act.
58 (5) The court may order that where possible the parties attempt to settle future disputes

59 by a dispute resolution method before seeking enforcement or modification of the terms and
60 conditions of the order of joint legal custody or joint physical custody through litigation, except
61 in emergency situations requiring ex parte orders to protect the child.
62 Section 2. Section 30-3-10.4 is amended to read:
63 30-3-10.4. Modification or termination of order.
64 (1) On the motion of one or both of the parents, or the joint legal custodians if they are
65 not the parents, the court may, after a hearing, modify an order that established [joint legal]
66 custody if:
67 (a) the circumstances of the child or one or both custodians have materially and
68 substantially changed since the entry of the order to be modified[, or the order has become
69 unworkable or inappropriate under existing circumstances]; and
70 (b) a modification of the terms and conditions of the [decree] order would be an
71 improvement for and in the best interest of the child.
72 (2) A parent requesting a modification from sole custody to joint legal custody or joint
73 physical custody or both, or any other type of shared parenting arrangement, shall file and serve
74 a proposed parenting plan with the petition to modify in accordance with Section 30-3-10.8 .
75 [(2)] (3) The order of joint legal custody [shall] may be terminated by order of the
76 court if both parents file a motion for termination and the court determines that the joint legal
77 custody order is unworkable or inappropriate under existing circumstances. At the time of
78 entry of an order terminating joint legal custody, the court shall enter an order of sole legal
79 custody under Section 30-3-10 . All related issues, including parent-time and child support,
80 shall also be determined and ordered by the court.
81 (4) If the court finds that one parent unreasonably refuses or fails to cooperate in
82 support of a joint custody order, the court may award sole custody to the other parent.
83 [(3)] (5) If the court finds that an action under this section is filed or answered
84 frivolously and in a manner designed to harass the other party, the court shall assess attorney's
85 fees as costs against the offending party.
86 Section 3. Section 30-3-10.7 is amended to read:
87 30-3-10.7. Parenting plan -- Definitions.
88 (1) "Parenting plan" means a plan for parenting a child, including allocation of
89 parenting functions, which is incorporated in any final decree or decree of modification [in]

90 including an action for dissolution of marriage, annulment, legal separation, or paternity.
91 (2) "Parenting functions" means those aspects of the parent-child relationship in which
92 the parent makes decisions and performs functions necessary for the care and growth of the
93 child. Parenting functions include:
94 (a) maintaining a loving, stable, consistent, and nurturing relationship with the child;
95 (b) attending to the daily needs of the child, such as feeding, clothing, physical care,
96 grooming, supervision, health care, day care, and engaging in other activities which are
97 appropriate to the developmental level of the child and that are within the social and economic
98 circumstances of the particular family;
99 (c) attending to adequate education for the child, including remedial or other education
100 essential to the best interest of the child;
101 (d) assisting the child in developing and maintaining appropriate interpersonal
102 relationships;
103 (e) exercising appropriate judgment regarding the child's welfare, consistent with the
104 child's developmental level and family social and economic circumstances; and
105 (f) providing for the financial support of the child.




Legislative Review Note
as of 1-28-05 10:46 AM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel