1     
CUSTODY AND VISITATION RIGHTS AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Kyle R. Andersen

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to custody and visitation rights of a person other
10     than a parent.
11     Highlighted Provisions:
12          This bill:
13          ▸     amends the factors a court considers in granting visitation rights to grandparents;
14          ▸     amends provisions regarding when a court may inquire of and take into account a
15     grandchild's desires regarding visitation;
16          ▸     amends provisions regarding custody and visitation rights for a person other than a
17     parent; and
18          ▸     makes technical and conforming changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          30-5-2, as last amended by Laws of Utah 2005, Chapter 129
26          30-5a-103, as and further amended by Revisor Instructions, Laws of Utah 2018,
27     Chapter 446
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 30-5-2 is amended to read:
31          30-5-2. Visitation rights of grandparents.
32          (1) (a) Grandparents have standing to bring an action in district court by petition,
33     requesting visitation in accordance with the provisions and requirements of this section.
34          (b) Grandparents may also file a petition for visitation rights in a pending divorce
35     proceeding or other proceeding involving custody and visitation issues.
36          [(2) There is a rebuttable presumption that a parent's decision with regard to
37     grandparent visitation is in the grandchild's best interests. However, the court may override the
38     parent's decision and grant the petitioner reasonable rights of visitation if the court finds that
39     the petitioner has rebutted the presumption based upon factors which the court considers to be
40     relevant, such as whether:]
41          (2) (a) Parents retain the fundamental right and duty to exercise primary control over
42     the care, supervision, upbringing, and education of their children.
43          (b) There is a rebuttable presumption that a parent's decision with regard to
44     grandparent visitation is in the grandchild's best interest.
45          (c) A court may find the presumption in Subsection (2)(b) rebutted and grant a
46     petitioner described in Subsection (1) reasonable rights of visitation if the court finds that the
47     petitioner, by clear and convincing evidence, establishes:
48          [(a)] (i) (A) the petitioner is a fit and proper person to have visitation with the
49     grandchild;
50          [(b) visitation with the grandchild has been denied or unreasonably limited;]
51          [(c) the parent is unfit or incompetent;]
52          [(d)] (B) the petitioner has substantially acted as the grandchild's custodian or
53     caregiver, or [otherwise has had a substantial relationship with the grandchild, and] has had a
54     substantial custodian or caregiver-like relationship with the grandchild;
55          (C) the loss or cessation of [that] the relationship described in Subsection (2)(c)(i)(B)
56     is likely to cause substantial harm to the grandchild; and
57          [(e) the petitioner's child, who is a parent of the grandchild, has died, or has become a
58     noncustodial parent through divorce or legal separation;]
59          [(f) the petitioner's child, who is a parent of the grandchild, has been missing for an
60     extended period of time; or]
61          [(g)] (D) visitation is in the best interest of the grandchild[.]; or
62          (ii) (A) the petitioner is a fit and proper person to have visitation with the grandchild;
63     and
64          (B) both parents are unfit or incompetent.
65          (3) The adoption of a grandchild by the grandchild's stepparent does not diminish or
66     alter visitation rights previously ordered under this section.
67          (4) Subject to the provisions of Subsections (2) and (3) and if the grandchild is 14 years
68     of age or older, the court may inquire of the grandchild and take into account the grandchild's
69     desires regarding visitation.
70          (5) On the petition of a grandparent or the legal custodian of a grandchild the court
71     may, after a hearing, modify an order regarding grandparent visitation if:
72          (a) the circumstances of the grandchild, the grandparent, or the custodian have
73     materially and substantially changed since the entry of the order to be modified, or the order
74     has become unworkable or inappropriate under existing circumstances; and
75          (b) the court determines that a modification is appropriate based upon the factors set
76     forth in Subsection (2).
77          (6) Grandparents may petition the court to remedy a parent's wrongful noncompliance
78     with a visitation order.
79          Section 2. Section 30-5a-103 is amended to read:
80          30-5a-103. Custody and visitation for persons other than a parent.
81          (1) (a) In accordance with Section 62A-4a-201, it is the public policy of this state that
82     parents retain the fundamental right and duty to exercise primary control over the care,
83     supervision, upbringing, and education of their children.
84          (b) There is a rebuttable presumption that a parent's decisions are in the child's best
85     interests.
86          (2) A court may find the presumption in Subsection (1) rebutted and grant custodial or
87     visitation rights to a person other than a parent who, by clear and convincing evidence, has
88     established all of the following:
89          (a) the person has intentionally assumed the role and obligations of a parent;
90          (b) the person and the child have formed [an] a substantial emotional bond and created
91     a parent-child type relationship;
92          (c) the person substantially contributed emotionally [or] and financially to the child's
93     well being;
94          (d) assumption of the parental role is not the result of a financially compensated
95     surrogate care arrangement;
96          (e) continuation of the relationship between the person and the child would be in the
97     child's best interests;
98          (f) loss or cessation of the relationship between the person and the child would [be
99     detrimental to] substantially harm the child; and
100          [(g) the parent:]
101          (g) both parents:
102          (i) [is] are absent; or
103          (ii) (A) [is] are found by a court to have abused or neglected the child[.]; and
104          (B) have had their parental rights terminated.
105          (3) A proceeding under this chapter may be commenced by filing a verified petition, or
106     petition supported by an affidavit, in the juvenile court if a matter is pending, or in the district
107     court in the county in which the child:
108          (a) currently resides; or
109          (b) lived with a parent or a person other than a parent who acted as a parent within six
110     months before the commencement of the action.
111          (4) A proceeding under this chapter may be filed in a pending divorce, parentage
112     action, or other proceeding, including a proceeding in the juvenile court, involving custody of
113     or visitation with a child.
114          (5) The petition shall include detailed facts supporting the petitioner's right to file the
115     petition including the criteria set forth in Subsection (2) and residency information as set forth
116     in Section 78B-13-209.
117          (6) A proceeding under this chapter may not be filed against a parent who is actively
118     serving outside the state in any branch of the military.
119          (7) Notice of a petition filed pursuant to this chapter shall be served in accordance with
120     the rules of civil procedure on all of the following:
121          (a) the child's biological, adopted, presumed, declarant, and adjudicated parents;
122          (b) any person who has court-ordered custody or visitation rights;
123          (c) the child's guardian;
124          (d) the guardian ad litem, if one has been appointed;
125          (e) a person or agency that has physical custody of the child or that claims to have
126     custody or visitation rights; and
127          (f) any other person or agency that has previously appeared in any action regarding
128     custody of or visitation with the child.
129          (8) The court may order a custody evaluation to be conducted in any action brought
130     under this chapter.
131          (9) The court may enter temporary orders in an action brought under this chapter
132     pending the entry of final orders.
133          (10) Except as provided in Subsection (11), a court may not grant custody of a child
134     under this section to an individual who is not the biological or adoptive parent of the child and
135     who, before a custody order is issued, is convicted, pleads guilty, or pleads no contest to a
136     felony or attempted felony involving conduct that constitutes any of the following:
137          (a) child abuse, as described in Section 76-5-109;
138          (b) child abuse homicide, as described in Section 76-5-208;
139          (c) child kidnapping, as described in Section 76-5-301.1;
140          (d) human trafficking of a child, as described in Section 76-5-308.5;
141          (e) sexual abuse of a minor, as described in Section 76-5-401.1;
142          (f) rape of a child, as described in Section 76-5-402.1;
143          (g) object rape of a child, as described in Section 76-5-402.3;
144          (h) sodomy on a child, as described in Section 76-5-403.1;
145          (i) sexual abuse of a child or aggravated sexual abuse of a child, as described in
146     Section 76-5-404.1;
147          (j) sexual exploitation of a minor, as described in Section 76-5b-201; or
148          (k) an offense in another state that, if committed in this state, would constitute an
149     offense described in this Subsection (10).
150          (11) (a) For purpose of this Subsection (11), "disqualifying offense" means an offense
151     listed in Subsection (10) that prevents a court from granting custody except as provided in this
152     Subsection (11).
153          (b) A person described in Subsection (10) may only be considered for custody of a
154     child if the following criteria are met by clear and convincing evidence:
155          (i) the person is a relative, as defined in Section 78A-6-307, of the child;
156          (ii) at least 10 years have elapsed from the day on which the person is successfully
157     released from prison, jail, parole, or probation related to a disqualifying offense;
158          (iii) during the 10 years before the day on which the person files a petition with the
159     court seeking custody the person has not been convicted, plead guilty, or plead no contest to an
160     offense greater than an infraction or traffic violation that would likely impact the health, safety,
161     or well-being of the child;
162          (iv) the person can provide evidence of successful treatment or rehabilitation directly
163     related to the disqualifying offense;
164          (v) the court determines that the risk related to the disqualifying offense is unlikely to
165     cause harm, as defined in Section 78A-6-105, or potential harm to the child currently or at any
166     time in the future when considering all of the following:
167          (A) the child's age;
168          (B) the child's gender;
169          (C) the child's development;
170          (D) the nature and seriousness of the disqualifying offense;
171          (E) the preferences of a child 12 years of age or older;
172          (F) any available assessments, including custody evaluations, parenting assessments,
173     psychological or mental health assessments, and bonding assessments; and
174          (G) any other relevant information;
175          (vi) the person can provide evidence of the following:
176          (A) the relationship with the child is of long duration;
177          (B) that an emotional bond exists with the child; and
178          (C) that custody by the person who has committed the disqualifying offense ensures the
179     best interests of the child are met;
180          (vii) (A) there is no other responsible relative known to the court who has or likely
181     could develop an emotional bond with the child and does not have a disqualifying offense; or
182          (B) if there is a responsible relative known to the court that does not have a
183     disqualifying offense, Subsection (11)(d) applies; and
184          (viii) that the continuation of the relationship between the person with the disqualifying
185     offense and the child could not be sufficiently maintained through any type of visitation if
186     custody were given to the relative with no disqualifying offense described in Subsection
187     (11)(d).
188          (c) The person with the disqualifying offense bears the burden of proof regarding why
189     placement with that person is in the best interest of the child over another responsible relative
190     or equally situated person who does not have a disqualifying offense.
191          (d) If, as provided in Subsection (11)(b)(vii)(B), there is a responsible relative known
192     to the court who does not have a disqualifying offense:
193          (i) preference for custody is given to a relative who does not have a disqualifying
194     offense; and
195          (ii) before the court may place custody with the person who has the disqualifying
196     offense over another responsible, willing, and able relative:
197          (A) an impartial custody evaluation shall be completed; and
198          (B) a guardian ad litem shall be assigned.
199          (12) Subsections (10) and (11) apply to a case pending on March 25, 2017 for which a
200     final decision on custody has not been made and to a case filed on or after March 25, 2017.