This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Jan 24, 2022 at 12:37 PM by kpoll.
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6 Cosponsor:
Todd D. Weiler
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8 LONG TITLE
9 General Description:
10 This bill amends provisions relating to the waiver of court fees.
11 Highlighted Provisions:
12 This bill:
13 ▸ amends provisions regarding an affidavit of indigency;
14 ▸ defines the term, "indigent";
15 ▸ allows court fees, costs, or security to be waived for indigent individuals;
16 ▸ requires a court to find an individual indigent under certain circumstances; and
17 ▸ makes technical and conforming changes.
18 Money Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 None
22 Utah Code Sections Affected:
23 AMENDS:
24 30-3-11.3, as last amended by Laws of Utah 2018, Chapter 470
25 30-3-11.4, as last amended by Laws of Utah 2018, Chapter 470
26 41-6a-518, as last amended by Laws of Utah 2021, Chapter 83
27 78A-2-302, as last amended by Laws of Utah 2011, Chapter 366
28 78A-2-303, as renumbered and amended by Laws of Utah 2008, Chapter 3
29 78A-2-304, as renumbered and amended by Laws of Utah 2008, Chapter 3
30 78A-2-305, as last amended by Laws of Utah 2010, Chapter 226
31 78A-2-306, as renumbered and amended by Laws of Utah 2008, Chapter 3
32 78A-2-309, as last amended by Laws of Utah 2009, Chapter 146
33 78A-2-705, as last amended by Laws of Utah 2019, Chapter 326
34 78A-2-803, as renumbered and amended by Laws of Utah 2021, Chapter 261
35 78B-5-825, as renumbered and amended by Laws of Utah 2008, Chapter 3
36 78B-6-205, as last amended by Laws of Utah 2011, Chapter 367
37
38 Be it enacted by the Legislature of the state of Utah:
39 Section 1. Section 30-3-11.3 is amended to read:
40 30-3-11.3. Mandatory educational course for divorcing parents -- Purpose --
41 Curriculum -- Reporting.
42 (1) The Judicial Council shall approve and implement a mandatory course for
43 divorcing parents in all judicial districts. The mandatory course is designed to educate and
44 sensitize divorcing parties to their children's needs both during and after the divorce process.
45 (2) The Judicial Council shall adopt rules to implement and administer this program.
46 (3) (a) As a prerequisite to receiving a divorce decree, both parties are required to
47 attend a mandatory course on their children's needs after filing a complaint for divorce and
48 receiving a docket number, unless waived under Section 30-3-4. If that requirement is waived,
49 the court may permit the divorce action to proceed.
50 (b) With the exception of a temporary restraining order pursuant to Rule 65, Utah
51 Rules of Civil Procedure, a party may file, but the court may not hear, a motion for an order
52 related to the divorce until the moving party completes the mandatory educational course for
53 divorcing parents required by this section.
54 (4) The court may require unmarried parents to attend this educational course when
55 those parents are involved in a visitation or custody proceeding before the court.
56 (5) The mandatory course shall instruct both parties:
57 (a) about divorce and its impacts on:
58 (i) their child or children;
59 (ii) their family relationship; and
60 (iii) their financial responsibilities for their child or children; and
61 (b) that domestic violence has a harmful effect on children and family relationships.
62 (6) The course may be provided through live instruction, video instruction, or an online
63 provider. The online and video options must be formatted as interactive presentations that
64 ensure active participation and learning by the parent.
65 (7) The Administrative Office of the Courts shall administer the course pursuant to
66 Title 63G, Chapter 6a, Utah Procurement Code, through private or public contracts and
67 organize the program in each of Utah's judicial districts. The contracts shall provide for the
68 recoupment of administrative expenses through the costs charged to individual parties,
69 pursuant to Subsection (9).
70 (8) A certificate of completion constitutes evidence to the court of course completion
71 by the parties.
72 (9) (a) Each party shall pay the costs of the course to the independent contractor
73 providing the course at the time and place of the course. A fee of $8 shall be collected, as part
74 of the course fee paid by each participant, and deposited in the Children's Legal Defense
75 Account, described in Section 51-9-408.
76 (b) Each party who is unable to pay the costs of the course may attend the course
77 without payment upon a prima facie showing of [
78 affidavit of [
79 78A-2-302. In those situations, the independent contractor shall be reimbursed for [
80 independent contractor's costs from the appropriation to the Administrative Office of the
81 Courts for "Mandatory Educational Course for Divorcing Parents Program." Before a decree of
82 divorce may be entered, the court shall make a final review and determination of
83 [
84 (10) Appropriations from the General Fund to the Administrative Office of the Courts
85 for the "Mandatory Educational Course for Divorcing Parents Program" shall be used to pay
86 the costs of an indigent parent who makes a showing as provided in Subsection (9)(b).
87 (11) The Administrative Office of the Courts shall adopt a program to evaluate the
88 effectiveness of the mandatory educational course. Progress reports shall be provided if
89 requested by the Judiciary Interim Committee.
90 Section 2. Section 30-3-11.4 is amended to read:
91 30-3-11.4. Mandatory orientation course for divorcing parties -- Purpose --
92 Curriculum -- Reporting.
93 (1) There is established a mandatory divorce orientation course for all parties with
94 minor children who file a petition for temporary separation or for a divorce. A couple with no
95 minor children is not required, but may choose to attend the course. The purpose of the course
96 is to educate parties about the divorce process and reasonable alternatives.
97 (2) A petitioner shall attend a divorce orientation course no more than 60 days after
98 filing a petition for divorce.
99 (3) (a) With the exception of a temporary restraining order pursuant to Rule 65, Utah
100 Rules of Civil Procedure, a party may file, but the court may not hear, a motion for an order
101 related to the divorce or petition for temporary separation, until the moving party completes the
102 divorce orientation course.
103 (b) Notwithstanding Subsection (3)(a), both parties shall attend a divorce orientation
104 course before a divorce decree may be entered, unless waived by the court under Section
105 30-3-4.
106 (4) The respondent shall attend the divorce orientation course no more than 30 days
107 after being served with a petition for divorce.
108 (5) The clerk of the court shall provide notice to a petitioner of the requirement for the
109 course, and information regarding the course shall be included with the petition or motion,
110 when served on the respondent.
111 (6) The divorce orientation course shall be neutral, unbiased, at least one hour in
112 duration, and include:
113 (a) options available as alternatives to divorce;
114 (b) resources available from courts and administrative agencies for resolving custody
115 and support issues without filing for divorce;
116 (c) resources available to improve or strengthen the marriage;
117 (d) a discussion of the positive and negative consequences of divorce;
118 (e) a discussion of the process of divorce;
119 (f) options available for proceeding with a divorce, including:
120 (i) mediation;
121 (ii) collaborative law; and
122 (iii) litigation; and
123 (g) a discussion of post-divorce resources.
124 (7) The course may be provided in conjunction with the mandatory course for
125 divorcing parents required by Section 30-3-11.3.
126 (8) The Administrative Office of the Courts shall administer the course pursuant to
127 Title 63G, Chapter 6a, Utah Procurement Code, through private or public contracts.
128 (9) The course may be through live instruction, video instruction, or through an online
129 provider.
130 (10) (a) A participant shall pay the costs of the course, which may not exceed $30, to
131 the independent contractor providing the course at the time and place of the course.
132 (b) A petitioner who attends a live instruction course within 30 days of filing may not
133 be charged more than $15 for the course.
134 (c) A respondent who attends a live instruction course within 30 days of being served
135 with a petition for divorce may not be charged more than $15 for the course.
136 (d) A fee of $5 shall be collected, as part of the course fee paid by each participant, and
137 deposited in the Children's Legal Defense Account described in Section 51-9-408.
138 (e) [
139
140
141 attend the course without payment upon a prima facie showing of indigency as evidenced by an
142 affidavit of indigency filed in the district court in accordance with Section 78A-2-302. The
143 independent contractor shall be reimbursed for [
144 Administrative Office of the Courts. A petitioner who is later determined not to meet the
145 qualifications for [
146 (11) Appropriations from the General Fund to the Administrative Office of the Courts
147 for the divorce orientation course shall be used to pay the costs of an indigent petitioner who is
148 determined to be [
149 (12) The Online Court Assistance Program shall include instructions with the forms for
150 divorce that inform the petitioner of the requirement of this section.
151 (13) A certificate of completion constitutes evidence to the court of course completion
152 by the parties.
153 (14) It shall be an affirmative defense in all divorce actions that the divorce orientation
154 requirement was not complied with, and the action may not continue until a party has
155 complied.
156 (15) The Administrative Office of the Courts shall adopt a program to evaluate the
157 effectiveness of the mandatory educational course. Progress reports shall be provided if
158 requested by the Judiciary Interim Committee.
159 Section 3. Section 41-6a-518 is amended to read:
160 41-6a-518. Ignition interlock devices -- Use -- Probationer to pay cost -- Indigency
161 -- Fee.
162 (1) As used in this section:
163 (a) "Commissioner" means the commissioner of the Department of Public Safety.
164 (b) "Employer verification" means written verification from the employer that:
165 (i) the employer is aware that the employee is an interlock restricted driver;
166 (ii) the vehicle the employee is operating for employment purposes is not made
167 available to the employee for personal use;
168 (iii) the business entity that employs the employee is not entirely or partly owned or
169 controlled by the employee;
170 (iv) the employer's auto insurance company is aware that the employee is an interlock
171 restricted driver; and
172 (v) the employee has been added to the employer's auto insurance policy as an operator
173 of the vehicle.
174 (c) "Ignition interlock system" or "system" means a constant monitoring device or any
175 similar device certified by the commissioner that prevents a motor vehicle from being started
176 or continuously operated without first determining the driver's breath alcohol concentration.
177 (d) "Probation provider" means the supervisor and monitor of the ignition interlock
178 system required as a condition of probation who contracts with the court in accordance with
179 Subsections 41-6a-507(2) and (3).
180 (2) (a) In addition to any other penalties imposed under Sections 41-6a-503 and
181 41-6a-505, and in addition to any requirements imposed as a condition of probation, unless the
182 court determines and states on the record that an ignition interlock system is not necessary for
183 the safety of the community and in the best interest of justice, the court shall require that any
184 person who is convicted of violating Section 41-6a-502 and who is granted probation may not
185 operate a motor vehicle during the period of probation unless that motor vehicle is equipped
186 with a functioning, certified ignition interlock system installed and calibrated so that the motor
187 vehicle will not start or continuously operate if the operator's blood alcohol concentration
188 exceeds .02 grams or greater.
189 (b) If a person convicted of violating Section 41-6a-502 was under the age of 21 when
190 the violation occurred, the court shall order the installation of the ignition interlock system as a
191 condition of probation.
192 (c) (i) If a person is convicted of a violation of Section 41-6a-502 within 10 years of a
193 prior conviction as defined in Subsection 41-6a-501(2), the court shall order the installation of
194 the interlock ignition system, at the person's expense, for all motor vehicles registered to that
195 person and all motor vehicles operated by that person.
196 (ii) A person who operates a motor vehicle without an ignition interlock device as
197 required under this Subsection (2)(c) is in violation of Section 41-6a-518.2.
198 (d) The division shall post the ignition interlock restriction on the electronic record
199 available to law enforcement.
200 (e) This section does not apply to a person convicted of a violation of Section
201 41-6a-502 whose violation does not involve alcohol.
202 (3) If the court imposes the use of an ignition interlock system as a condition of
203 probation, the court shall:
204 (a) stipulate on the record the requirement for and the period of the use of an ignition
205 interlock system;
206 (b) order that an ignition interlock system be installed on each motor vehicle owned or
207 operated by the probationer, at the probationer's expense;
208 (c) immediately notify the Driver License Division and the person's probation provider
209 of the order; and
210 (d) require the probationer to provide proof of compliance with the court's order to the
211 probation provider within 30 days of the order.
212 (4) (a) The probationer shall provide timely proof of installation within 30 days of an
213 order imposing the use of a system or show cause why the order was not complied with to the
214 court or to the probationer's probation provider.
215 (b) The probation provider shall notify the court of failure to comply under Subsection
216 (4)(a).
217 (c) For failure to comply under Subsection (4)(a) or upon receiving the notification
218 under Subsection (4)(b), the court shall order the Driver License Division to suspend the
219 probationer's driving privileges for the remaining period during which the compliance was
220 imposed.
221 (d) Cause for failure to comply means any reason the court finds sufficiently justifiable
222 to excuse the probationer's failure to comply with the court's order.
223 (5) (a) Any probationer required to install an ignition interlock system shall have the
224 system monitored by the manufacturer or dealer of the system for proper use and accuracy at
225 least semiannually and more frequently as the court may order.
226 (b) (i) A report of the monitoring shall be issued by the manufacturer or dealer to the
227 court or the person's probation provider.
228 (ii) The report shall be issued within 14 days following each monitoring.
229 (6) (a) If an ignition interlock system is ordered installed, the probationer shall pay the
230 reasonable costs of leasing or buying and installing and maintaining the system.
231 (b) A probationer may not be excluded from this section for inability to pay the costs,
232 unless:
233 (i) the probationer files an affidavit of [
234 Section 78A-2-302; and
235 (ii) the court enters a finding that the probationer is [
236 (c) In lieu of waiver of the entire amount of the cost, the court may direct the
237 probationer to make partial or installment payments of costs when appropriate.
238 (d) The ignition interlock provider shall cover the costs of waivers by the court under
239 this Subsection (6).
240 (7) (a) If a probationer is required in the course and scope of employment to operate a
241 motor vehicle owned by the probationer's employer, the probationer may operate that motor
242 vehicle without installation of an ignition interlock system only if:
243 (i) the motor vehicle is used in the course and scope of employment;
244 (ii) the employer has been notified that the employee is restricted; and
245 (iii) the employee has employer verification in the employee's possession while
246 operating the employer's motor vehicle.
247 (b) (i) To the extent that an employer-owned motor vehicle is made available to a
248 probationer subject to this section for personal use, no exemption under this section shall apply.
249 (ii) A probationer intending to operate an employer-owned motor vehicle for personal
250 use and who is restricted to the operation of a motor vehicle equipped with an ignition interlock
251 system shall notify the employer and obtain consent in writing from the employer to install a
252 system in the employer-owned motor vehicle.
253 (c) A motor vehicle owned by a business entity that is all or partly owned or controlled
254 by a probationer subject to this section is not a motor vehicle owned by the employer and does
255 not qualify for an exemption under this Subsection (7).
256 (8) (a) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
257 the commissioner shall make rules setting standards for the certification of ignition interlock
258 systems.
259 (b) The standards under Subsection (8)(a) shall require that the system:
260 (i) not impede the safe operation of the motor vehicle;
261 (ii) have features that make circumventing difficult and that do not interfere with the
262 normal use of the motor vehicle;
263 (iii) require a deep lung breath sample as a measure of breath alcohol concentration;
264 (iv) prevent the motor vehicle from being started if the driver's breath alcohol
265 concentration exceeds .02 grams or greater;
266 (v) work accurately and reliably in an unsupervised environment;
267 (vi) resist tampering and give evidence if tampering is attempted;
268 (vii) operate reliably over the range of motor vehicle environments; and
269 (viii) be manufactured by a party who will provide liability insurance.
270 (c) The commissioner may adopt in whole or in part, the guidelines, rules, studies, or
271 independent laboratory tests relied upon in certification of ignition interlock systems by other
272 states.
273 (d) A list of certified systems shall be published by the commissioner and the cost of
274 certification shall be borne by the manufacturers or dealers of ignition interlock systems
275 seeking to sell, offer for sale, or lease the systems.
276 (e) (i) In accordance with Section 63J-1-504, the commissioner may establish an
277 annual dollar assessment against the manufacturers of ignition interlock systems distributed in
278 the state for the costs incurred in certifying.
279 (ii) The assessment under Subsection (8)(e)(i) shall be apportioned among the
280 manufacturers on a fair and reasonable basis.
281 (f) The commissioner shall require a provider of an ignition interlock system certified
282 in accordance with this section to comply with the requirements of Title 53, Chapter 3, Part 10,
283 Ignition Interlock System Program Act.
284 (9) A violation of this section is a class C misdemeanor.
285 (10) There shall be no liability on the part of, and no cause of action of any nature shall
286 arise against, the state or its employees in connection with the installation, use, operation,
287 maintenance, or supervision of an interlock ignition system as required under this section.
288 Section 4. Section 78A-2-302 is amended to read:
289 78A-2-302. Indigent litigants -- Affidavit.
290 (1) [
291 (a) "Convicted" means:
292 (i) a conviction by entry of a plea of guilty or nolo contendere, guilty with a mental
293 illness, no contest[
294 (ii) a conviction of any crime or offense.
295 (b) "Indigent" means an individual who is financially unable to pay fees and costs or
296 give security.
297 [
298 and is incarcerated for that crime or is being held in custody for trial or sentencing.
299 [
300
301
302
303 [
304 (2) An individual may institute, prosecute, defend, or appeal any cause in a court in this
305 state without prepayment of fees and costs or security if the individual submits an affidavit
306 demonstrating that the individual is indigent.
307 (3) A court shall find an individual indigent if the individual's affidavit under
308 Subsection (2) demonstrates:
309 (a) the individual has an income level at or below 150% of the United States poverty
310 level as defined by the most recent poverty income guidelines published by the United States
311 Department of Health and Human Services;
312 (b) the individual receives benefits from a means-tested government program,
313 including Temporary Assistance to Needy Families, Supplemental Security Income, the
314 Supplemental Nutrition Assistance Program, or Medicaid;
315 (c) the individual receives legal services from a nonprofit provider or a pro bono
316 attorney through the Utah State Bar; or
317 (d) the individual has insufficient income or other means to pay the necessary fees and
318 costs or security without depriving the individual, or the individual's family, of food, shelter,
319 clothing, or other necessities.
320 (4) An affidavit Ŝ→ [
320a indigent under Subsection (3)(d) ←Ŝ shall contain complete information on
321 the individual's:
322 (a) identity and residence;
323 (b) amount of income, including Ŝ→ any ←Ŝ government financial support, alimony, Ŝ→
323a or ←Ŝ child support;
324 (c) assets owned, including real and personal property;
325 (d) business interests;
326 (e) accounts receivable;
327 (f) securities, checking and savings account balances;
328 (g) debts; and
329 (h) monthly expenses.
330 [
331 shall [
332 the time the affidavit under Subsection (2) is executed [
333 Section 78A-2-305.
334 [
335 under this section shall state the following:
336 I, [
337 to bear the expenses of the action or legal proceedings which I am about to commence or the
338 appeal which I am about to take, and that I believe I am entitled to the relief sought by the
339 action, legal proceedings, or appeal.
340 Section 5. Section 78A-2-303 is amended to read:
341 78A-2-303. False affidavit -- Penalty.
342 (1) [
343 [
344 (a) false;
345 (b) frivolous or without merit; or
346 (c) malicious.
347 (2) Upon receipt of an affidavit in accordance with Subsection (1), the court may notify
348 the affiant of the challenge and set a date, not less than five days from receipt of the notice,
349 requiring the affiant to appear and show cause why the affiant should not be required to:
350 (a) post a bond for the costs of the action or appeal; or
351 (b) pay the legal fees for the action or appeal.
352 (3) The court may dismiss the action or appeal if:
353 (a) the affiant does not appear;
354 (b) the affiant appears and the court determines the affidavit is false, frivolous, without
355 merit, or malicious; or
356 (c) the court orders the affiant to post a bond or pay the legal fees and the affiant fails
357 to do so.
358 Section 6. Section 78A-2-304 is amended to read:
359 78A-2-304. Effect of filing affidavit -- Nonprisoner.
360 (1) (a) Upon the filing of [
361 indigency under Section 78A-2-302 by a nonprisoner, the court shall review the affidavit and
362 make an independent determination based on the information provided whether court costs and
363 fees should be waived entirely or in part.
364 (b) Notwithstanding the party's statement of inability to pay court costs, the court shall
365 require a partial or full filing fee where the financial information provided demonstrates an
366 ability to pay a fee.
367 (2) (a) In instances where fees or costs are completely waived, the court shall
368 immediately file any complaint or papers on appeal and do what is necessary or proper as
369 promptly as if the litigant had fully paid all the regular fees.
370 (b) The constable or sheriff shall immediately serve any summonses, writs, process and
371 subpoenas, and papers necessary or proper in the prosecution or defense of the cause, for the
372 [
373 paid.
374 (3) [
375 indigency under Section 78A-2-302 is filed, the [
376 question the individual who filed the affidavit at the time of hearing the cause as to [
377 individual's ability to pay. [
378 (a) If the court opines that the [
379 the [
380 individual until the costs are paid.
381 (b) The order may be cancelled later upon petition if the facts warrant cancellation.
382 Section 7. Section 78A-2-305 is amended to read:
383 78A-2-305. Effect of filing affidavit -- Procedure for review and collection.
384 (1) (a) Upon receipt of [
385 78A-2-302 filed with any Utah court by a prisoner, the court shall immediately request the
386 institution or facility where the prisoner is incarcerated to provide an account statement
387 detailing all financial activities in the prisoner's trust account for the previous six months or
388 since the time of incarceration, whichever is shorter.
389 (b) The incarcerating facility shall:
390 (i) prepare and produce to the court the prisoner's six-month trust account statement,
391 current trust account balance, and aggregate disposable income; and
392 (ii) calculate aggregate disposable income by totaling all deposits made in the
393 prisoner's trust account during the six-month period and subtracting all funds automatically
394 deducted or otherwise garnished from the account during the same period.
395 (2) The court shall:
396 (a) review both the affidavit of [
397 statement; and
398 (b) based upon the review, independently determine whether or not the prisoner is
399 financially capable of paying all the regular fees and costs associated with filing the action.
400 (3) When the court concludes that the prisoner is unable to pay full fees and costs, the
401 court shall assess an initial partial filing fee equal to 50% of the prisoner's current trust account
402 balance or 10% of the prisoner's six-month aggregate disposable income, whichever is greater.
403 (4) (a) After payment of the initial partial filing fee, the court shall require the prisoner
404 to make monthly payments of 20% of the preceding month's aggregate disposable income until
405 the regular filing fee associated with the civil action is paid in full.
406 (b) The agency having custody of the prisoner shall:
407 (i) garnish the prisoner's account each month; and
408 (ii) once the collected fees exceed $10, forward payments to the clerk of the court until
409 the filing fees are paid.
410 (c) Nothing in this section may be construed to prevent the agency having custody of
411 the prisoner from withdrawing funds from the prisoner's account to pay court-ordered
412 restitution.
413 (5) Collection of the filing fees continues despite dismissal of the action.
414 (6) The filing fee collected may not exceed the amount of fees permitted by statute for
415 the commencement of a civil action or an appeal of a civil action.
416 (7) If the prisoner is filing an initial divorce action or an action to obtain custody of the
417 prisoner's children, the following procedures shall apply for review and collection of fees and
418 costs:
419 (a) (i) [
420 under Section 78A-2-302 with any Utah court by a prisoner, the court shall review the affidavit
421 and make an independent determination based on the information provided whether court costs
422 and fees should be paid in full or be waived in whole or in part.
423 (ii) The court shall require a full or partial filing fee when the prisoner's financial
424 information demonstrates an ability to pay the applicable court fees or costs.
425 (b) (i) If a prisoner's court fees or costs are completely waived, and if the prisoner files
426 an appeal, the court shall immediately file any complaint or papers on appeal and complete all
427 necessary action as promptly as if the litigant had paid all the fees and costs in full.
428 (ii) If a prisoner is [
429 serve any summonses, writs, process and subpoenas, and papers necessary in the prosecution or
430 defense of the cause as if all the necessary fees and costs had been paid in full.
431 (c) (i) If a prisoner files an affidavit of [
432 question the prisoner at the time of the hearing on the merits of the case as to the prisoner's
433 ability to pay.
434 (ii) If the judge determines that the prisoner is reasonably able to pay court fees and
435 costs, the final order or decree shall be entered, however the prisoner may not seek enforcement
436 or modification of the decree or order until the prisoner has paid the fees or costs in full.
437 (iii) A judge may waive the restrictions placed on the prisoner in Subsection (7)(c)(ii)
438 upon a showing of good cause.
439 Section 8. Section 78A-2-306 is amended to read:
440 78A-2-306. Notice of filing fee -- Consequence of nonpayment.
441 (1) When an affidavit of [
442 filed and the court assesses an initial filing fee, the court shall immediately notify the litigant in
443 writing of:
444 (a) the initial filing fee required as a prerequisite to proceeding with the action;
445 (b) the procedure available to challenge the initial filing fee assessment as provided in
446 Section 78A-2-307; and
447 (c) the [
448 entire filing fee is paid.
449 (2) The court may not authorize service of process or otherwise proceed with the
450 action, except as provided in Section 78A-2-307, until the initial filing fee has been completely
451 paid to the clerk of the court.
452 Section 9. Section 78A-2-309 is amended to read:
453 78A-2-309. Liability for fees if successful in litigation.
454 (1) Nothing in this part shall prevent a justice court judge, clerk, constable, or sheriff
455 from collecting [
456 indigent individual, in the event the [
457 (2) All fees and costs shall be regularly taxed and included in any judgment recovered
458 by the [
459 (3) The fees and costs shall be paid to a justice court judge, clerk, constable, or sheriff.
460 (4) If the [
461 the action or appeal [
462 Section 10. Section 78A-2-705 is amended to read:
463 78A-2-705. Private attorney guardian ad litem -- Appointment -- Costs and fees --
464 Duties -- Conflicts of interest -- Pro bono obligation -- Indemnification -- Minimum
465 qualifications.
466 (1) The court may appoint an attorney as a private attorney guardian ad litem to
467 represent the best interests of the minor in any district court action when:
468 (a) child abuse, child sexual abuse, or neglect is alleged in any proceeding, and the
469 court has made a finding that an adult party is not indigent as determined under Section
470 78B-22-202; or
471 (b) the custody of, or parent-time with, a child is at issue.
472 (2) (a) The court shall consider the limited number of eligible private attorneys
473 guardian ad litem, as well as the limited time and resources available to a private attorney
474 guardian ad litem, when making an appointment under Subsection (1) and prioritize case
475 assignments accordingly.
476 (b) The court shall make findings regarding the need and basis for the appointment of a
477 private attorney guardian ad litem.
478 (c) A court may not appoint a private attorney guardian ad litem in a criminal case.
479 (3) (a) If the parties stipulate to a private attorney guardian ad litem, the office shall
480 assign the stipulated private attorney guardian ad litem to the case in accordance with this
481 section.
482 (b) If, under Subsection (3)(a), the parties have not stipulated to a private attorney
483 guardian ad litem, or if the stipulated private attorney guardian ad litem is unable to take the
484 case, the court shall appoint a private attorney guardian ad litem in accordance with Subsection
485 (3)(c).
486 (c) The court shall state in an order that the court is appointing a private attorney
487 guardian ad litem, to be assigned by the office, to represent the best interests of the child in the
488 matter.
489 (d) The court shall send the order described in Subsection (3)(c) to the office, in care of
490 the Private Attorney Guardian ad Litem program.
491 (4) The court shall:
492 (a) specify in the order appointing a private attorney guardian ad litem the specific
493 issues in the proceeding that the private attorney guardian ad litem shall be involved in
494 resolving, which may include issues relating to the custody of the child and a parent-time
495 schedule;
496 (b) to the extent possible, bifurcate the issues described in Subsection (4)(a) from the
497 other issues in the case in order to minimize the time constraints placed upon the private
498 attorney guardian ad litem; and
499 (c) except as provided in Subsection (6), issue a final order within one year after the
500 day on which the private attorney guardian ad litem is appointed in the case:
501 (i) resolving the issues described in Subsection (4)(a); and
502 (ii) terminating the private attorney guardian ad litem from the appointment to the case.
503 (5) The court shall issue an order terminating the appointment of a private attorney
504 guardian ad litem made under this section if:
505 (a) after receiving input from the private attorney guardian ad litem, the court
506 determines that the minor no longer requires the services of the private attorney guardian ad
507 litem; or
508 (b) there has been no activity in the case for a period of six consecutive months.
509 (6) A court may issue an order extending the one-year period described in Subsection
510 (4)(c) for a specified amount of time if the court makes a written finding that there is a
511 compelling reason that the court cannot comply with the requirements described in Subsection
512 (4)(c) within the one-year period.
513 (7) When appointing a private attorney guardian ad litem under this section, a court
514 may appoint the same private attorney guardian ad litem who represents the minor in another
515 proceeding, or who has represented the minor in a previous proceeding, if that private attorney
516 guardian ad litem is available.
517 (8) (a) Upon receipt of the court's order, described in Subsections (3)(c) and (d), the
518 office shall assign the case to a private attorney guardian ad litem, if available, in accordance
519 with this section.
520 (b) (i) If, after the initial assignment of a private attorney guardian ad litem, either party
521 objects to the assigned private attorney guardian ad litem, that party may file an objection with
522 the court within seven days after the day on which the party received notice of the assigned
523 private attorney guardian ad litem.
524 (ii) If, after the initial assignment of a private attorney guardian ad litem, either
525 attorney for a party discovers that the private attorney guardian ad litem represents an adverse
526 party in a separate matter, that attorney may file an objection with the court within seven days
527 after the day on which the attorney received notice of the private attorney guardian ad litem's
528 representation of an adverse party in a separate matter.
529 (iii) Upon receipt of an objection, the court shall determine whether grounds exist for
530 the objection, and if grounds exist, the court shall order, without a hearing, the office to assign
531 a new private attorney guardian ad litem, in consultation with the parties and in accordance
532 with this section.
533 (iv) If no alternative private attorney guardian ad litem is available, the office shall
534 notify the court.
535 (9) (a) When appointing a private attorney guardian ad litem, the court shall:
536 (i) assess all or part of the private attorney guardian ad litem fees, court costs, and
537 paralegal, staff, and volunteer expenses against the parties in a proportion the court determines
538 to be just; and
539 (ii) designate in the order whether the private attorney guardian ad litem shall, as
540 established by rule under Subsection (17):
541 (A) be paid a set fee and initial retainer;
542 (B) not be paid and serve pro bono; or
543 (C) be paid at a rate less than the set fee established by court rule.
544 (b) If a party claims to be [
545 and make a determination, as described in Section 78A-2-302, to set the amount that the party
546 is required to pay, if any, toward the private attorney guardian ad litem's fees and expenses.
547 (c) The private attorney guardian ad litem may adjust the court-ordered fees or retainer
548 to an amount less than what was ordered by the court at any time before being released from
549 representation by the court.
550 (10) Upon accepting the court's appointment, the assigned private attorney guardian ad
551 litem shall:
552 (a) file a notice of appearance with the court within five business days of the day on
553 which the attorney was assigned; and
554 (b) represent the best interests of the minor until released by the court.
555 (11) The private attorney guardian ad litem:
556 (a) shall be certified by the director of the office as meeting the minimum
557 qualifications for appointment; and
558 (b) may not be employed by, or under contract with, the office unless under contract as
559 a conflict private attorney guardian ad litem in an unrelated case.
560 (12) The private attorney guardian ad litem appointed under the provisions of this
561 section shall:
562 (a) represent the best interests of the minor from the date of the appointment until
563 released by the court;
564 (b) conduct or supervise an ongoing, independent investigation in order to obtain,
565 first-hand, a clear understanding of the situation and needs of the minor;
566 (c) interview witnesses and review relevant records pertaining to the minor and the
567 minor's family, including medical, psychological, and school records;
568 (d) (i) personally meet with the minor, unless:
569 (A) the minor is outside of the state; or
570 (B) meeting with the minor would be detrimental to the minor;
571 (ii) personally interview the minor, unless:
572 (A) the minor is not old enough to communicate;
573 (B) the minor lacks the capacity to participate in a meaningful interview; or
574 (C) the interview would be detrimental to the minor;
575 (iii) to the extent possible, determine the minor's goals and concerns regarding custody
576 or visitation; and
577 (iv) to the extent possible, and unless it would be detrimental to the minor, keep the
578 minor advised of:
579 (A) the status of the minor's case;
580 (B) all court and administrative proceedings;
581 (C) discussions with, and proposals made by, other parties;
582 (D) court action; and
583 (E) the psychiatric, medical, or other treatment or diagnostic services that are to be
584 provided to the minor;
585 (e) unless excused by the court, prepare for and attend all mediation hearings and all
586 court conferences and hearings, and present witnesses and exhibits as necessary to protect the
587 best interests of the minor;
588 (f) identify community resources to protect the best interests of the minor and advocate
589 for those resources; and
590 (g) participate in all appeals unless excused by the court.
591 (13) (a) The private attorney guardian ad litem shall represent the best interests of a
592 minor.
593 (b) If the minor's intent and desires differ from the private attorney guardian ad litem's
594 determination of the minor's best interests, the private attorney guardian ad litem shall
595 communicate to the court the minor's intent and desires and the private attorney guardian ad
596 litem's determination of the minor's best interests.
597 (c) A difference between the minor's intent and desires and the private attorney
598 guardian ad litem's determination of best interests is not sufficient to create a conflict of
599 interest.
600 (d) The private attorney guardian ad litem shall disclose the intent and desires of the
601 minor unless the minor:
602 (i) instructs the private attorney guardian ad litem to not disclose the minor's intent and
603 desires; or
604 (ii) has not expressed an intent and desire.
605 (e) The court may appoint one private attorney guardian ad litem to represent the best
606 interests of more than one child of a marriage.
607 (14) In every court hearing where the private attorney guardian ad litem makes a
608 recommendation regarding the best interest of the minor, the court shall require the private
609 attorney guardian ad litem to disclose the factors that form the basis of the recommendation.
610 (15) A private attorney guardian ad litem appointed under this section is immune from
611 any civil liability that might result by reason of acts performed within the scope of duties of the
612 private attorney guardian ad litem.
613 (16) The office and the Guardian ad Litem Oversight Committee shall compile a list of
614 attorneys willing to accept an appointment as a private attorney guardian ad litem.
615 (17) Upon the advice of the director and the Guardian ad Litem Oversight Committee,
616 the Judicial Council shall establish by rule:
617 (a) the minimum qualifications and requirements for appointment by the court as a
618 private attorney guardian ad litem;
619 (b) the standard fee rate and retainer amount for a private attorney guardian ad litem;
620 (c) the percentage of cases a private attorney guardian ad litem may be expected to take
621 on pro bono;
622 (d) a system to:
623 (i) select a private attorney guardian ad litem for a given appointment; and
624 (ii) determine when a private attorney guardian ad litem shall be expected to accept an
625 appointment pro bono; and
626 (e) the process for handling a complaint relating to the eligibility status of a private
627 attorney guardian ad litem.
628 (18) (a) Any savings that result from assigning a private attorney guardian ad litem in a
629 district court case, instead of an office guardian ad litem, shall be applied to the office to recruit
630 and train attorneys for the private attorney guardian ad litem program.
631 (b) After complying with Subsection (18)(a), the office shall use any additional savings
632 to reduce caseloads and improve current practices in juvenile court.
633 Section 11. Section 78A-2-803 is amended to read:
634 78A-2-803. Appointment of attorney guardian ad litem -- Duties and
635 responsibilities -- Training -- Trained staff and court-appointed special advocate
636 volunteers -- Costs -- Immunity -- Annual report.
637 (1) (a) The court:
638 (i) may appoint an attorney guardian ad litem to represent the best interest of a minor
639 involved in any case before the court; and
640 (ii) shall consider the best interest of a minor, consistent with the provisions of Section
641 62A-4a-201, in determining whether to appoint a guardian ad litem.
642 (b) In all cases where an attorney guardian ad litem is appointed, the court shall make a
643 finding that establishes the necessity of the appointment.
644 (2) An attorney guardian ad litem shall represent the best interest of each minor who
645 may become the subject of an abuse, neglect, or dependency petition from the earlier of:
646 (a) the day on which the minor is removed from the minor's home by the division; or
647 (b) the day on which the abuse, neglect, or dependency petition is filed.
648 (3) The director shall ensure that each attorney guardian ad litem employed by the
649 office:
650 (a) represents the best interest of each client of the office in all venues, including:
651 (i) court proceedings; and
652 (ii) meetings to develop, review, or modify the child and family plan with the division
653 in accordance with Section 62A-4a-205;
654 (b) before representing any minor before the court, be trained in:
655 (i) applicable statutory, regulatory, and case law; and
656 (ii) nationally recognized standards for an attorney guardian ad litem;
657 (c) conducts or supervises an ongoing, independent investigation in order to obtain,
658 first-hand, a clear understanding of the situation and needs of the minor;
659 (d) (i) personally meets with the minor, unless:
660 (A) the minor is outside of the state; or
661 (B) meeting with the minor would be detrimental to the minor;
662 (ii) personally interviews the minor, unless:
663 (A) the minor is not old enough to communicate;
664 (B) the minor lacks the capacity to participate in a meaningful interview; or
665 (C) the interview would be detrimental to the minor; and
666 (iii) if the minor is placed in an out-of-home placement, or is being considered for
667 placement in an out-of-home placement, unless it would be detrimental to the minor:
668 (A) to the extent possible, determines the minor's goals and concerns regarding
669 placement; and
670 (B) personally assesses or supervises an assessment of the appropriateness and safety
671 of the minor's environment in each placement;
672 (e) personally attends all review hearings pertaining to the minor's case;
673 (f) participates in all appeals, unless excused by order of the court;
674 (g) is familiar with local experts who can provide consultation and testimony regarding
675 the reasonableness and appropriateness of efforts made by the division to:
676 (i) maintain a minor in the minor's home; or
677 (ii) reunify a minor with a minor's parent;
678 (h) to the extent possible, and unless it would be detrimental to the minor, personally
679 or through a trained volunteer, paralegal, or other trained staff, keeps the minor advised of:
680 (i) the status of the minor's case;
681 (ii) all court and administrative proceedings;
682 (iii) discussions with, and proposals made by, other parties;
683 (iv) court action; and
684 (v) the psychiatric, medical, or other treatment or diagnostic services that are to be
685 provided to the minor;
686 (i) in cases where a child and family plan is required, personally or through a trained
687 volunteer, paralegal, or other trained staff, monitors implementation of a minor's child and
688 family plan and any dispositional orders to:
689 (i) determine whether services ordered by the court:
690 (A) are actually provided; and
691 (B) are provided in a timely manner; and
692 (ii) attempt to assess whether services ordered by the court are accomplishing the
693 intended goal of the services; and
694 (j) makes all necessary court filings to advance the guardian's ad litem position
695 regarding the best interest of the minor.
696 (4) (a) Consistent with this Subsection (4), an attorney guardian ad litem may use
697 trained volunteers, in accordance with Title 67, Chapter 20, Volunteer Government Workers
698 Act, trained paralegals, and other trained staff to assist in investigation and preparation of
699 information regarding the cases of individual minors before the court.
700 (b) A volunteer, paralegal, or other staff utilized under this section shall be trained in
701 and follow, at a minimum, the guidelines established by the United States Department of
702 Justice Court Appointed Special Advocate Association.
703 (5) The attorney guardian ad litem shall continue to represent the best interest of the
704 minor until released from that duty by the court.
705 (6) (a) Consistent with Subsection (6)(b), the juvenile court is responsible for:
706 (i) all costs resulting from the appointment of an attorney guardian ad litem; and
707 (ii) the costs of volunteer, paralegal, and other staff appointment and training.
708 (b) The court shall use funds appropriated by the Legislature for the guardian ad litem
709 program to cover the costs described in Subsection (6)(a).
710 (c) (i) When the court appoints an attorney guardian ad litem under this section, the
711 court may assess all or part of the attorney fees, court costs, and paralegal, staff, and volunteer
712 expenses against the minor's parents, parent, or legal guardian in a proportion that the court
713 determines to be just and appropriate, taking into consideration costs already borne by the
714 parents, parent, or legal guardian, including:
715 (A) private attorney fees;
716 (B) counseling for the minor;
717 (C) counseling for the parent, if mandated by the court or recommended by the
718 division; and
719 (D) any other cost the court determines to be relevant.
720 (ii) The court may not assess the fees or costs described in Subsection (6)(c)(i) against:
721 (A) a legal guardian, when that guardian is the state; or
722 (B) consistent with Subsection (6)(d), a parent who is found to be an indigent
723 individual.
724 (d) For purposes of Subsection (6)(c)(ii)(B), if an individual claims to be an indigent
725 individual, the court shall:
726 (i) require the individual to submit an affidavit of [
727 Section 78A-2-302; and
728 (ii) follow the procedures and make the determinations as provided in Section
729 78A-2-304.
730 (e) The minor's parents, parent, or legal guardian may appeal the court's determination,
731 under Subsection (6)(c), of fees, costs, and expenses.
732 (7) An attorney guardian ad litem appointed under this section, when serving in the
733 scope of the attorney guardian's ad litem duties as guardian ad litem is considered an employee
734 of the state for purposes of indemnification under Title 63G, Chapter 7, Governmental
735 Immunity Act of Utah.
736 (8) (a) An attorney guardian ad litem shall represent the best interest of a minor.
737 (b) If the minor's wishes differ from the attorney's determination of the minor's best
738 interest, the attorney guardian ad litem shall communicate the minor's wishes to the court in
739 addition to presenting the attorney's determination of the minor's best interest.
740 (c) A difference between the minor's wishes and the attorney's determination of best
741 interest may not be considered a conflict of interest for the attorney.
742 (d) The guardian ad litem shall disclose the wishes of the minor unless the minor:
743 (i) instructs the guardian ad litem to not disclose the minor's wishes; or
744 (ii) has not expressed any wishes.
745 (e) The court may appoint one attorney guardian ad litem to represent the best interests
746 of more than one minor of a marriage.
747 (9) The division shall provide an attorney guardian ad litem access to all division
748 records regarding the minor at issue and the minor's family.
749 (10) (a) An attorney guardian ad litem shall conduct an independent investigation
750 regarding the minor at issue, the minor's family, and what is in the best interest of the minor.
751 (b) An attorney guardian ad litem may interview the minor's child welfare worker, but
752 may not:
753 (i) rely exclusively on the conclusions and findings of the division; or
754 (ii) except as provided in Subsection (10)(c), conduct a visit with the client in
755 conjunction with the visit of a child welfare worker.
756 (c) (i) An attorney guardian ad litem may meet with a client during a team meeting,
757 court hearing, or similar venue when a child welfare worker is present for a purpose other than
758 the attorney guardian ad litem's meeting with the client.
759 (ii) A party and the party's counsel may attend a team meeting in accordance with the
760 Utah Rules of Professional Conduct.
761 (11) (a) An attorney guardian ad litem shall maintain current and accurate records
762 regarding:
763 (i) the number of times the attorney has had contact with each minor; and
764 (ii) the actions the attorney has taken in representation of the minor's best interest.
765 (b) In every hearing where the attorney guardian ad litem makes a recommendation
766 regarding the best interest of the minor, the court shall require the attorney guardian ad litem to
767 disclose the factors that form the basis of the recommendation.
768 (12) (a) Except as provided in Subsection (12)(b), and notwithstanding Title 63G,
769 Chapter 2, Government Records Access and Management Act, all records of an attorney
770 guardian ad litem are confidential and may not be released or made public upon subpoena,
771 search warrant, discovery proceedings, or otherwise.
772 (b) Consistent with Subsection (12)(d), all records of an attorney guardian ad litem:
773 (i) are subject to legislative subpoena, under Title 36, Chapter 14, Legislative
774 Subpoena Powers; and
775 (ii) shall be released to the Legislature.
776 (c) (i) Except as provided in Subsection (12)(c)(ii), the Legislature shall maintain
777 records released in accordance with Subsection (12)(b) as confidential.
778 (ii) Notwithstanding Subsection (12)(c)(i), the Office of the Legislative Auditor
779 General may include summary data and nonidentifying information in the office's audits and
780 reports to the Legislature.
781 (d) (i) Subsection (12)(b) is an exception to Rules of Professional Conduct, Rule 1.6,
782 as provided by Rule 1.6(b)(4), because of:
783 (A) the unique role of an attorney guardian ad litem described in Subsection (8); and
784 (B) the state's role and responsibility to provide a guardian ad litem program, and as
785 parens patriae, to protect minors.
786 (ii) A claim of attorney-client privilege does not bar access to the records of an attorney
787 guardian ad litem by the Legislature, through legislative subpoena.
788 Section 12. Section 78B-5-825 is amended to read:
789 78B-5-825. Attorney fees -- Award where action or defense in bad faith --
790 Exceptions.
791 (1) In civil actions, the court shall award reasonable attorney fees to a prevailing party
792 if the court determines that the action or defense to the action was without merit and not
793 brought or asserted in good faith, except under Subsection (2).
794 (2) The court, in [
795 party under Subsection (1), but only if the court:
796 (a) finds the party has filed an affidavit of [
797 78A-2-302 in the action before the court; or
798 (b) the court enters in the record the reason for not awarding fees under the provisions
799 of Subsection (1).
800 Section 13. Section 78B-6-205 is amended to read:
801 78B-6-205. Judicial Council rules for ADR procedures.
802 (1) To promote the use of ADR procedures, the Judicial Council may by rule establish
803 experimental and permanent ADR programs administered by the Administrative Office of the
804 Courts under the supervision of the director of Dispute Resolution Programs.
805 (2) The rules of the Judicial Council shall be based upon the purposes and provisions
806 of this part. Any procedural and evidentiary rules adopted by the Supreme Court may not
807 impinge on the constitutional rights of any parties.
808 (3) The rules of the Judicial Council shall include provisions:
809 (a) to orient parties and their counsel to the ADR program, ADR procedures, and the
810 rules of the Judicial Council;
811 (b) to identify types of civil actions that qualify for ADR procedures;
812 (c) to refer to ADR procedures all or particular issues within a civil action;
813 (d) to protect persons not parties to the civil action whose rights may be affected in the
814 resolution of the dispute;
815 (e) to ensure that no party or its attorney is prejudiced for electing, in good faith, not to
816 participate in an optional ADR procedure;
817 (f) to exempt any case from the ADR program in which the objectives of ADR would
818 not be realized;
819 (g) to create timetables to ensure that the ADR procedure is instituted and completed
820 without undue delay or expense;
821 (h) to establish the qualifications of ADR providers for each form of ADR procedure
822 including that formal education in any particular field may not, by itself, be either a prerequisite
823 or sufficient qualification to serve as an ADR provider under the program authorized by this
824 part;
825 (i) to govern the conduct of each type of ADR procedure, including the site at which
826 the procedure is conducted;
827 (j) to establish the means for the selection of an ADR provider for each form of ADR
828 procedure;
829 (k) to determine the powers, duties, and responsibilities of the ADR provider for each
830 form of ADR procedure;
831 (l) to establish a code of ethics applicable to ADR providers with means for its
832 enforcement;
833 (m) to protect and preserve the privacy and confidentiality of ADR procedures;
834 (n) to protect and preserve the privacy rights of the persons attending the ADR
835 procedures;
836 (o) to permit waiver of all or part of fees assessed for referral of a case to the ADR
837 program on a showing of [
838 (p) to authorize imposition of sanctions for failure of counsel or parties to participate in
839 good faith in the ADR procedure assigned;
840 (q) to assess the fees to cover the cost of compensation for the services of the ADR
841 provider and reimbursement for the provider's allowable, out-of-pocket expenses and
842 disbursements; and
843 (r) to allow vacation of an award by a court as provided in Section 78B-11-124.
844 (4) The Judicial Council may, from time to time, limit the application of its ADR rules
845 to particular judicial districts.