Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 64 Second Substitute (2020GS)

Sponsor

Rep. Andersen, K.

Final action

Governor Signed 3/24/2020

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• addresses the Utah Supreme Court's decision in Jones v. Jones, 359 P.3d 603 (Utah 2015), by amending the factors that a court considers in granting visitation rights to grandparents;
• amends provisions regarding when a court may inquire, and take into account, a grandchild's desires with respect to visitation;
• amends provisions regarding custody and visitation rights for an individual other than a parent; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

CUSTODY AND VISITATION RIGHTS AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Kyle R. Andersen
Senate Sponsor: 
Allen M. Christensen
LONG TITLE
General Description:
This bill amends provisions related to custody and visitation rights of an individual
other than a parent.
Highlighted Provisions:
This bill:
▸ addresses the Utah Supreme Court's decision in Jones v. Jones, 359 P.3d 603 (Utah
2015), by amending the factors that a court considers in granting visitation rights to
grandparents;
▸ amends provisions regarding when a court may inquire, and take into account, a
grandchild's desires with respect to visitation;
▸ amends provisions regarding custody and visitation rights for an individual other
than a parent; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
30-5-1
, as last amended by Laws of Utah 2002, Chapter 85
30-5-2
, as last amended by Laws of Utah 2005, Chapter 129
30-5a-101
, as enacted by Laws of Utah 2008, Chapter 272
30-5a-102
, as enacted by Laws of Utah 2008, Chapter 272
30-5a-103
, as and further amended by Revisor Instructions, Laws of Utah 2018,
Chapter 446
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
30-5-1
 is amended to read:
30-5-1.
Definitions.
As used in this act:
(1) "District court" means the district court with proper jurisdiction over the
grandchild.
(2) "Grandchild" means the child with respect to whom a grandparent is seeking
visitation rights under this chapter.
(3) "Grandparent" means [
a person
] 
an individual
 whose child, either by blood,
marriage, or adoption, is the parent of the grandchild.
Section 2. Section 
30-5-2
 is amended to read:
30-5-2.
Visitation rights of grandparents.
(1) 
In accordance with the provisions and requirements of this section:
(a)
 [
Grandparents have
] 
a grandparent has
 standing to bring an action 
requesting
visitation
 in district court by petition[
, requesting visitation in accordance with the provisions
and requirements of this section. Grandparents may also
]
; and
(b) a grandparent may
 file a petition for visitation rights in [
a pending
] 
the juvenile
court or district court where a
 divorce proceeding or other proceeding involving custody and
visitation issues 
is pending
.
[
(2) There is a rebuttable presumption that a parent's decision with regard to
grandparent visitation is in the grandchild's best interests. However, the court may override the
parent's decision and grant the petitioner reasonable rights of visitation if the court finds that
the petitioner has rebutted the presumption based upon factors which the court considers to be
relevant, such as whether:
]
[
(a) the petitioner is a fit and proper person to have visitation with the grandchild;
]
[
(b) visitation with the grandchild has been denied or unreasonably limited;
]
[
(c) the parent is unfit or incompetent;
]
[
(d) the petitioner has acted as the grandchild's custodian or caregiver, or otherwise has
had a substantial relationship with the grandchild, and
]
[
the loss or cessation of that relationship is likely to cause harm to the grandchild;
]
[
(e) the petitioner's child, who is a parent of the grandchild, has died, or has become a
noncustodial parent through divorce or legal separation;
]
[
(f) the petitioner's child, who is a parent of the grandchild, has been missing for an
extended period of time; or
]
[
(g) visitation is in the best interest of the grandchild.
]
(2) (a) In accordance with Section 
62A-4a-201
, it is the public policy of this state that a
parent retains the fundamental right and duty to exercise primary control over the care,
supervision, upbringing, and education of the parent's children.
(b) A court shall presume that a parent's decision in regard to grandparent visitation is
in the best interest of the parent's child.
(3) A court may find the presumption in Subsection (2)(b) rebutted if the grandparent,
by clear and convincing evidence, establishes that:
(a) the grandparent has filled the role of custodian or caregiver to the grandchild that:
(i) is in a manner akin to a parent; and
(ii) the loss of the relationship between the grandparent and the grandchild would cause
substantial harm to the grandchild; or
(b) both parents are unfit or incompetent in a manner that causes potential harm to the
grandchild.
(4) (a) If the court finds the presumption in Subsection (2)(b) is rebutted, the court may
consider whether grandparent visitation is in the best interest of the grandchild.
(b) If the court considers whether grandparent visitation is in the best interest of the
child, the court shall take into account the totality of the circumstances, including:
(i) the reasonableness of the parent's decision to deny grandparent visitation;
(ii) the age of the grandchild;
(iii) the death or unavailability of a parent; and
(iv) if the grandchild is 14 years old or older, the grandchild's desires regarding
visitation after the court inquires of the grandchild.
(5) If the court finds the presumption in Subsection (2)(b) is rebutted and grandparent
visitation is in the best interest of the grandchild, the court may issue an order for grandparent
visitation.
[
(3)
] 
(6)
 The adoption of a grandchild by the grandchild's stepparent does not diminish
or alter visitation rights previously ordered under this section.
[
(4) Subject to the provisions of Subsections (2) and (3), the court may inquire of the
grandchild and take into account the grandchild's desires regarding visitation.
]
[
(5)
] 
(7)
 On the petition of a grandparent or the legal custodian of a grandchild the
court may, after a hearing, modify an order regarding grandparent visitation if:
(a) the circumstances of the grandchild, the grandparent, or the custodian have
materially and substantially changed since the entry of the order to be modified, or the order
has become unworkable or inappropriate under existing circumstances; and
(b) the court determines that a modification is appropriate based upon the factors set
forth in [
Subsection (2)
] 
Subsections (3) and (4)
.
[
(6)
] 
(8)
 [
Grandparents
] 
A grandparent
 may petition the court to remedy a parent's
wrongful noncompliance with a visitation order.
Section 3. Section 
30-5a-101
 is amended to read:
CHAPTER 5a. CUSTODY AND VISITATION FOR INDIVIDUALS
OTHER THAN PARENTS ACT
30-5a-101.
Title.
This chapter is known as the "Custody and Visitation for [
Persons
] 
Individuals
 Other
than Parents Act."
Section 4. Section 
30-5a-102
 is amended to read:
30-5a-102.
Definitions.
As used in this chapter:
[
(1) "Parent" means a biological or adoptive parent.
]
[
(2)
] 
(1)
 "[
Person
] 
Individual
 other than a parent" means [
a person
] 
an individual who
is not a parent and is
 related to the child by marriage or blood, including:
(a) siblings;
(b) aunts;
(c) uncles;
(d) grandparents; or
(e) current or former step-parents, or any of the [
persons
] 
individuals described
 in
Subsections [
(2)
] 
(1)
(a) through (d) in a step relationship to the child.
(2) "Parent" means a biological or adoptive parent.
Section 5. Section 
30-5a-103
 is amended to read:
30-5a-103.
Custody and visitation for individuals other than a parent.
(1) 
(a)
 In accordance with Section 
62A-4a-201
, it is the public policy of this state that
[
parents
] 
a parent
 retain the fundamental right and duty to exercise primary control over the
care, supervision, upbringing, and education of [
their
] 
the parent's
 children.
(b)
 There is a rebuttable presumption that a parent's decisions are in the child's best
interests.
(2) A court may find the presumption in Subsection (1) rebutted and grant custodial or
visitation rights to [
a person
] 
an individual
 other than a parent who, by clear and convincing
evidence, [
has established all of the following
] 
establishes that
:
(a) the [
person
] 
individual
 has intentionally assumed the role and obligations of a
parent;
(b) the [
person
] 
individual
 and the child have formed [
an
] 
a substantial
 emotional bond
and created a parent-child type relationship;
(c) the [
person
] 
individual substantially
 contributed emotionally or financially to the
child's well being;
(d) 
the
 assumption of the parental role is not the result of a financially compensated
surrogate care arrangement;
(e) 
the
 continuation of the relationship between the [
person
] 
individual
 and the child
[
would be
] 
is
 in the child's best [
interests
] 
interest
;
(f) 
the
 loss or cessation of the relationship between the [
person
] 
individual
 and the
child would [
be detrimental to
] 
substantially harm
 the child; and
(g) the parent:
(i) is absent; or
(ii) is found by a court to have abused or neglected the child.
(3) A proceeding under this chapter may be commenced by filing a verified petition, or
petition supported by an affidavit, in the juvenile court if a matter is pending, or in the district
court in the county [
in which
] 
where
 the child:
(a) currently resides; or
(b) lived with a parent or [
a person
] 
an individual
 other than a parent who acted as a
parent within six months before the commencement of the action.
(4) A proceeding under this chapter may be filed in a pending divorce, parentage
action, or other proceeding, including a proceeding in the juvenile court[
,
] involving custody of
or visitation with a child.
(5) The petition shall include detailed facts supporting the petitioner's right to file the
petition including the criteria set forth in Subsection (2) and residency information as set forth
in Section 
78B-13-209
.
(6) A proceeding under this chapter may not be filed against a parent who is actively
serving outside the state in any branch of the military.
(7) Notice of a petition filed pursuant to this chapter shall be served in accordance with
the rules of civil procedure on all of the following:
(a) the child's biological, adopted, presumed, declarant, and adjudicated parents;
(b) any [
person
] 
individual
 who has court-ordered custody or visitation rights;
(c) the child's guardian;
(d) the guardian ad litem, if one has been appointed;
(e) [
a person
] 
an individual
 or agency that has physical custody of the child or that
claims to have custody or visitation rights; and
(f) any other [
person
] 
individual
 or agency that has previously appeared in any action
regarding custody of or visitation with the child.
(8) The court may order a custody evaluation to be conducted in any action brought
under this chapter.
(9) The court may enter temporary orders in an action brought under this chapter
pending the entry of final orders.
(10) Except as provided in Subsection (11), a court may not grant custody of a child
under this section to an individual who is not the [
biological or adoptive
] parent of the child
and who, before a custody order is issued, is convicted, pleads guilty, or pleads no contest to a
felony or attempted felony involving conduct that constitutes any of the following:
(a) child abuse, as described in Section 
76-5-109
;
(b) child abuse homicide, as described in Section 
76-5-208
;
(c) child kidnapping, as described in Section 
76-5-301.1
;
(d) human trafficking of a child, as described in Section 
76-5-308.5
;
(e) sexual abuse of a minor, as described in Section 
76-5-401.1
;
(f) rape of a child, as described in Section 
76-5-402.1
;
(g) object rape of a child, as described in Section 
76-5-402.3
;
(h) sodomy on a child, as described in Section 
76-5-403.1
;
(i) sexual abuse of a child or aggravated sexual abuse of a child, as described in
Section 
76-5-404.1
;
(j) sexual exploitation of a minor, as described in Section 
76-5b-201
; or
(k) an offense in another state that, if committed in this state, would constitute an
offense described in this Subsection (10).
(11) (a) [
For purpose of
] 
As used in
 this Subsection (11), "disqualifying offense"
means an offense listed in Subsection (10) that prevents a court from granting custody except
as provided in this Subsection (11).
(b) [
A person
] 
An individual
 described in Subsection (10) may only be considered for
custody of a child if the following criteria are met by clear and convincing evidence:
(i) the [
person
] 
individual
 is a relative, as defined in Section 
78A-6-307
, of the child;
(ii) at least 10 years have elapsed from the day on which the [
person
] 
individual
 is
successfully released from prison, jail, parole, or probation related to a disqualifying offense;
(iii) during the 10 years before the day on which the [
person
] 
individual
 files a petition
with the court seeking custody the [
person
] 
individual
 has not been convicted, plead guilty, or
plead no contest to an offense greater than an infraction or traffic violation that would likely
impact the health, safety, or well-being of the child;
(iv) the [
person
] 
individual
 can provide evidence of successful treatment or
rehabilitation directly related to the disqualifying offense;
(v) the court determines that the risk related to the disqualifying offense is unlikely to
cause harm, as defined in Section 
78A-6-105
, or potential harm to the child currently or at any
time in the future when considering all of the following:
(A) the child's age;
(B) the child's gender;
(C) the child's development;
(D) the nature and seriousness of the disqualifying offense;
(E) the preferences of a child 12 years [
of age
] 
old
 or older;
(F) any available assessments, including custody evaluations, parenting assessments,
psychological or mental health assessments, and bonding assessments; and
(G) any other relevant information;
(vi) the [
person
] 
individual
 can provide evidence of the following:
(A) the relationship with the child is of long duration;
(B) that an emotional bond exists with the child; and
(C) that custody by the [
person
] 
individual
 who has committed the disqualifying
offense ensures the best interests of the child are met;
(vii) (A) there is no other responsible relative known to the court who has or likely
could develop an emotional bond with the child and does not have a disqualifying offense; or
(B) if there is a responsible relative known to the court that does not have a
disqualifying offense, Subsection (11)(d) applies; and
(viii) that the continuation of the relationship between the [
person
] 
individual
 with the
disqualifying offense and the child could not be sufficiently maintained through any type of
visitation if custody were given to the relative with no disqualifying offense described in
Subsection (11)(d).
(c) The [
person
] 
individual
 with the disqualifying offense bears the burden of proof
regarding why placement with that [
person
] 
individual
 is in the best interest of the child over
another responsible relative or equally situated [
person
] 
individual
 who does not have a
disqualifying offense.
(d) If, as provided in Subsection (11)(b)(vii)(B), there is a responsible relative known
to the court who does not have a disqualifying offense:
(i) preference for custody is given to a relative who does not have a disqualifying
offense; and
(ii) before the court may place custody with the [
person
] 
individual
 who has the
disqualifying offense over another responsible, willing, and able relative:
(A) an impartial custody evaluation shall be completed; and
(B) a guardian ad litem shall be assigned.
(12) Subsections (10) and (11) apply to a case pending on March 25, 2017
,
 for which a
final decision on custody has not been made and to a case filed on or after March 25, 2017.