Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 272 Fifth Substitute (2024GS)

Sponsor

Rep. Cutler, P.

Final action

Governor Signed 3/20/2024

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• in certain proceedings involving child custody:
• specifies requirements for the admission of expert evidence; and
• requires a court to consider evidence relating to domestic violence or abuse by a parent;
• imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child;
• requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;
• requires that certain protective order proceedings comply with specific standards; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

CHILD CUSTODY PROCEEDINGS AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Paul A. Cutler
Senate Sponsor: 
 Michael K. McKell
LONG TITLE
General Description:
This bill concerns the protection of children in certain judicial proceedings.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ in certain proceedings involving child custody:
• specifies requirements for the admission of expert evidence; and
• requires a court to consider evidence relating to domestic violence or abuse by a
parent;
▸ imposes certain requirements and limitations regarding orders to improve the
relationship between a parent and a child;
▸ requires the state court administrator to make recommendations regarding the
education and training of court personnel involving child custody and related
proceedings;
▸ requires that certain protective order proceedings comply with specific standards;
and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
30-3-10
, as last amended by Laws of Utah 2023, Chapters 44, 327
30-3-10.10
, as enacted by Laws of Utah 2006, Chapter 287
30-3-34
, as last amended by Laws of Utah 2021, Chapter 399
30-3-34.5
, as last amended by Laws of Utah 2022, Chapter 430
ENACTS:
30-3-41
, Utah Code Annotated 1953
78A-2-232
, Utah Code Annotated 1953
78B-7-121
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
30-3-10
 is amended to read:
30-3-10.
Custody of a child -- Custody factors.
(1) If a married couple having one or more minor children are separated, or the married
couple's marriage is declared void or dissolved, the court shall enter, and has continuing
jurisdiction to modify, an order of custody and parent-time.
(2) In determining any form of custody and parent-time under Subsection (1), the court
shall consider the best interest of the child [
and may consider among other factors the court
finds relevant, the following for each parent:
]
.
(3) In determining any form of custody and parent-time under Subsection (1), the court
shall consider:
(a) for each parent, and in accordance with Section 
30-3-41
, evidence of domestic
violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the
parent, or a household member of the parent; and
(b) a credible allegation of child abuse.
(4) In determining any form of custody and parent-time under Subsection (1), the court
may consider, among other factors the court finds relevant, the following for each parent:
[
(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
abuse, involving the child, the parent, or a household member of the parent;
]
[
(b)
] 
(a)
 the parent's demonstrated understanding of, responsiveness to, and ability to
meet the developmental needs of the child, including the child's:
(i) physical needs;
(ii) emotional needs;
(iii) educational needs;
(iv) medical needs; and
(v) any special needs;
[
(c)
] 
(b)
 the parent's capacity and willingness to function as a parent, including:
(i) parenting skills;
(ii) co-parenting skills, including:
(A) ability to appropriately communicate with the other parent;
(B) ability to encourage the sharing of love and affection; and
(C) willingness to allow frequent and continuous contact between the child and the
other parent, except that, if the court determines that the parent is acting to protect the child
from domestic violence, neglect, or abuse, the parent's protective actions may be taken into
consideration; and
(iii) ability to provide personal care rather than surrogate care;
[
(d)
] 
(c)
 in accordance with Subsection [
(10)
] 
(12)
, the past conduct and demonstrated
moral character of the parent;
[
(e)
] 
(d)
 the emotional stability of the parent;
[
(f)
] 
(e)
 the parent's inability to function as a parent because of drug abuse, excessive
drinking, or other causes;
[
(g)
] 
(f)
 whether the parent has intentionally exposed the child to pornography or
material harmful to minors, as "material" and "harmful to minors" are defined in Section
76-10-1201
;
[
(h)
] 
(g)
 the parent's reasons for having relinquished custody or parent-time in the past;
[
(i)
] 
(h)
 duration and depth of desire for custody or parent-time;
[
(j)
] 
(i)
 the parent's religious compatibility with the child;
[
(k)
] 
(j)
 the parent's financial responsibility;
[
(l)
] 
(k)
 the child's interaction and relationship with step-parents, extended family
members of other individuals who may significantly affect the child's best interests;
[
(m)
] 
(l)
 who has been the primary caretaker of the child;
[
(n)
] 
(m)
 previous parenting arrangements in which the child has been happy and
well-adjusted in the home, school, and community;
[
(o)
] 
(n)
 the relative benefit of keeping siblings together;
[
(p)
] 
(o)
 the stated wishes and concerns of the child, taking into consideration the
child's cognitive ability and emotional maturity;
[
(q)
] 
(p)
 the relative strength of the child's bond with the parent, meaning the depth,
quality, and nature of the relationship between the parent and the child; and
[
(r)
] 
(q)
 any other factor the court finds relevant.
[
(3)
] 
(5)
 There is a rebuttable presumption that joint legal custody, as defined in
Section 
30-3-10.1
, is in the best interest of the child, except in cases when there is:
(a) 
in accordance with Section 
30-3-41
,
 evidence of domestic violence, neglect,
physical abuse, sexual abuse, or emotional abuse involving the child, a parent, or a household
member of the parent;
(b) special physical or mental needs of a parent or child, making joint legal custody
unreasonable;
(c) physical distance between the residences of the parents, making joint decision
making impractical in certain circumstances; or
(d) any other factor the court considers relevant including those listed in this section
and Section 
30-3-10.2
.
[
(4)
] 
(6)
 (a) The person who desires joint legal custody shall file a proposed parenting
plan in accordance with Sections 
30-3-10.8
 and 
30-3-10.9
.
(b) A presumption for joint legal custody may be rebutted by a showing by a
preponderance of the evidence that it is not in the best interest of the child.
[
(5)
] 
(7)
 (a) A child may not be required by either party to testify unless the trier of fact
determines that extenuating circumstances exist that would necessitate the testimony of the
child be heard and there is no other reasonable method to present the child's testimony.
(b) (i) The court may inquire of the child's and take into consideration the child's
desires regarding future custody or parent-time schedules, but the expressed desires are not
controlling and the court may determine the child's custody or parent-time otherwise.
(ii) The desires of a child 14 years old or older shall be given added weight, but is not
the single controlling factor.
(c) (i) If an interview with a child is conducted by the court pursuant to Subsection
[
(5)(b)
] 
(7)(b)
, the interview shall be conducted by the judge in camera.
(ii) The prior consent of the parties may be obtained but is not necessary if the court
finds that an interview with a child is the only method to ascertain the child's desires regarding
custody.
[
(6)
] 
(8)
 (a) Except as provided in Subsection [
(6)(b)
] 
(8)(b)
, a court may not
discriminate against a parent due to a disability, as defined in Section 
57-21-2
, in awarding
custody or determining whether a substantial change has occurred for the purpose of modifying
an award of custody.
(b) The court may not consider the disability of a parent as a factor in awarding custody
or modifying an award of custody based on a determination of a substantial change in
circumstances, unless the court makes specific findings that:
(i) the disability significantly or substantially inhibits the parent's ability to provide for
the physical and emotional needs of the child at issue; and
(ii) the parent with a disability lacks sufficient human, monetary, or other resources
available to supplement the parent's ability to provide for the physical and emotional needs of
the child at issue.
(c) Nothing in this section may be construed to apply to adoption proceedings under
Title 78B, Chapter 6, Part 1, Utah Adoption Act.
[
(7)
] 
(9)
 This section does not establish a preference for either parent solely because of
the gender of the parent.
[
(8)
] 
(10)
 This section establishes neither a preference nor a presumption for or against
joint physical custody or sole physical custody, but allows the court and the family the widest
discretion to choose a parenting plan that is in the best interest of the child.
[
(9)
] 
(11)
 When an issue before the court involves custodial responsibility in the event
of a deployment of one or both parents who are service members and the service member has
not yet been notified of deployment, the court shall resolve the issue based on the standards in
Sections 
78B-20-306
 through 
78B-20-309
.
[
(10)
] 
(12)
 In considering the past conduct and demonstrated moral standards of each
party under Subsection [
(2)(d)
] 
(4)(c)
 or any other factor a court finds relevant, the court may
not:
(a) consider or treat a parent's lawful possession or use of cannabis in a medicinal
dosage form, a cannabis product in a medicinal dosage form, or a medical cannabis device, in
accordance with Title 4, Chapter 41a, Cannabis Production Establishments and Pharmacies,
Title 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis, or Subsection
58-37-3.7
(2) or (3) any differently than the court would consider or treat the lawful possession
or use of any prescribed controlled substance; or
(b) discriminate against a parent because of the parent's status as a:
(i) cannabis production establishment agent, as that term is defined in Section
4-41a-102
;
(ii) medical cannabis pharmacy agent, as that term is defined in Section 
26B-4-201
;
(iii) medical cannabis courier agent, as that term is defined in Section 
26B-4-201
; or
(iv) medical cannabis cardholder in accordance with Title 26B, Chapter 4, Part 2,
Cannabinoid Research and Medical Cannabis.
Section 2. Section 
30-3-10.10
 is amended to read:
30-3-10.10.
Parenting plan -- Domestic violence.
(1) In any proceeding regarding a parenting plan, the court shall consider evidence of
domestic violence 
in accordance with Section 
30-3-41
, if presented.
(2) If there is a protective order, civil stalking injunction, or the court finds that a
parent has committed domestic violence, the court shall consider the impact of domestic
violence in awarding parent-time, and make specific findings regarding the award of
parent-time.
(3) If the court orders parent-time and a protective order or civil stalking injunction is
still in place, it shall consider whether to order the parents to conduct parent-time pick-up and
transfer through a third party. The parent who is the stated victim in the order or injunction
may submit to the court, and the court shall consider, the name of a person considered suitable
to act as the third party.
(4) If the court orders the parents to conduct parent-time through a third party, the
parenting plan shall specify the time, day, place, manner, and the third party to be used to
implement the exchange.
Section 3. Section 
30-3-34
 is amended to read:
30-3-34.
Parent-time -- Best interests -- Rebuttable presumption.
(1) If the parties are unable to agree on a parent-time schedule, the court may:
(a) establish a parent-time schedule; or
(b) order a parent-time schedule described in Section 
30-3-35
, 
30-3-35.1
, 
30-3-35.2
, or
30-3-35.5
.
(2) The advisory guidelines as provided in Section 
30-3-33
 and the parent-time
schedule as provided in Sections 
30-3-35
 and 
30-3-35.5
 shall be considered the minimum
parent-time to which the noncustodial parent and the child shall be entitled.
(3) 
In accordance with Section 
30-3-41
, when ordering a parent-time schedule a court
shall consider:
(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
abuse, involving the child, a parent, or a household member of the parent; and
(b) a credible allegation of child abuse.
(4)
 A court may consider the following when ordering a parent-time schedule:
(a) whether parent-time would endanger the child's physical health or mental health, or
significantly impair the child's emotional development;
[
(b) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
abuse, involving the child, a parent, or a household member of the parent;
]
[
(c)
] 
(b)
 the distance between the residency of the child and the noncustodial parent;
[
(d) a credible allegation of child abuse has been made;
]
[
(e)
] 
(c)
 the lack of demonstrated parenting skills without safeguards to ensure the
child's well-being during parent-time;
[
(f)
] 
(d)
 the financial inability of the noncustodial parent to provide adequate food and
shelter for the child during periods of parent-time;
[
(g)
] 
(e)
 the preference of the child if the court determines the child is of sufficient
maturity;
[
(h)
] 
(f)
 the incarceration of the noncustodial parent in a county jail, secure youth
corrections facility, or an adult corrections facility;
[
(i)
] 
(g)
 shared interests between the child and the noncustodial parent;
[
(j)
] 
(h)
 the involvement or lack of involvement of the noncustodial parent in the
school, community, religious, or other related activities of the child;
[
(k)
] 
(i)
 the availability of the noncustodial parent to care for the child when the
custodial parent is unavailable to do so because of work or other circumstances;
[
(l)
] 
(j)
 a substantial and chronic pattern of missing, canceling, or denying regularly
scheduled parent-time;
[
(m)
] 
(k)
 the minimal duration of and lack of significant bonding in the parents'
relationship before the conception of the child;
[
(n)
] 
(l)
 the parent-time schedule of siblings;
[
(o)
] 
(m)
 the lack of reasonable alternatives to the needs of a nursing child; and
[
(p)
] 
(n)
 any other criteria the court determines relevant to the best interests of the
child.
[
(4)
] 
(5)
 The court shall enter the reasons underlying the court's order for parent-time
that:
(a) incorporates a parent-time schedule provided in Section 
30-3-35
 or 
30-3-35.5
; or
(b) provides more or less parent-time than a parent-time schedule provided in Section
30-3-35
 or 
30-3-35.5
.
[
(5)
] 
(6)
 A court may not order a parent-time schedule unless the court determines by a
preponderance of the evidence that the parent-time schedule is in the best interest of the child.
[
(6)
] 
(7)
 Once the parent-time schedule has been established, the parties may not alter
the schedule except by mutual consent of the parties or a court order.
Section 4. Section 
30-3-34.5
 is amended to read:
30-3-34.5.
Supervised parent-time.
(1) Considering the fundamental liberty interests of parents and children, it is the
policy of this state that divorcing parents have unrestricted and unsupervised access to their
children. When necessary to protect a child and no less restrictive means is reasonably
available however, 
and in accordance with Section 
30-3-41
,
 a court may order supervised
parent-time if the court finds evidence that the child would be subject to physical or emotional
harm or child abuse, as described in Sections 
76-5-109
, 
76-5-109.2
, 
76-5-109.3
, and 
76-5-114
,
from the noncustodial parent if left unsupervised with the noncustodial parent.
(2) 
(a)
 A court that orders supervised parent-time shall give preference to 
supervision
by an individual trained in security and the avoidance of domestic and family violence.
(b) If an individual described in Subsection (2)(a) is not available, a court shall give
preference to
 persons suggested by the parties to supervise, including relatives. If the court
finds that the persons suggested by the parties are willing to supervise, and are capable of
protecting the children from physical or emotional harm, or child abuse, the court shall
authorize the persons to supervise parent-time.
(3) If the court is unable to authorize any persons to supervise parent-time pursuant to
Subsection (2), the court may require that the noncustodial parent seek the services of a
professional individual or agency to exercise their supervised parent-time.
(4) At the time supervised parent-time is imposed, the court shall consider:
(a) whether the cost of professional or agency services is likely to prevent the
noncustodial parent from exercising parent-time; and
(b) whether the requirement for supervised parent-time should expire after a set period
of time.
(5) [
The
] 
Except when the court makes a finding that, due to abuse by or the incapacity
of the noncustodial parent, supervised parent-time will be necessary indefinitely to ensure the
safety and protection of the child, the
 court shall, in its order for supervised parent-time,
provide specific goals and expectations for the noncustodial parent to accomplish before
unsupervised parent-time may be granted. The court shall schedule one or more follow-up
hearings to revisit the issue of supervised parent-time.
(6) A noncustodial parent may, at any time, petition the court to modify the order for
supervised parent-time if the noncustodial parent can demonstrate that the specific goals and
expectations set by the court in Subsection (5) have been accomplished.
Section 5. Section 
30-3-41
 is enacted to read:
 30-3-41.
Definitions -- Expert evidence -- Violence or abuse findings -- Child
relationship and reunification.
(1) As used in this section:
(a) "Abuse" means the same as that term is defined in Section 
80-1-102
.
(b) (i) "Child custody proceeding" means a civil proceeding between the parents of a
child that involves the care or custody of the child, including proceedings involving:
(A) divorce;
(B) separation;
(C) visitation;
(D) paternity;
(E) child support; or
(F) legal or physical custody of the child.
(ii) "Child custody proceeding" does not include:
(A) a child protective, abuse, or neglect proceeding;
(B) a juvenile justice proceeding; or
(C) a child placement proceeding in which a state, local, or tribal government, a
designee of such a government, or any contracted child welfare agency or child protective
services agency of such a government is a party to the proceeding.
(c) "Domestic violence" means the same as that term is defined in Section 
77-36-1
.
(d) "Forensic" means professional activities undertaken pursuant to a court order or for
use in litigation, including the evaluation or treatment of a parent, child, or other individual
who is involved in a child custody proceeding.
(e) "Protective order" means:
(i) a civil protective order, as that term is defined in Section 
78B-7-102
;
(ii) an ex parte civil protective order, as that term is defined in Section 
78B-7-102
; or
(iii) a foreign protection order, as that term is defined in Section 
78B-7-302
.
(f) "Reunification treatment" means a treatment or therapy aimed at reuniting or
reestablishing a relationship between a child and an estranged or rejected parent or other family
member of the child.
(g) "Sexual abuse" means the same as that term is defined in Section 
80-1-102
.
(2) In a child custody proceeding, if a parent is alleged to have committed domestic
violence or abuse, including sexual abuse:
(a) the court may admit expert evidence from a court-appointed or outside professional
relating to alleged domestic violence or abuse only if the professional possesses demonstrated
expertise and adequate experience in working with victims of domestic violence or abuse,
including sexual abuse, that is not solely of a forensic nature; and
(b) in making a finding regarding an allegation of domestic violence or abuse,
including sexual abuse, the court shall consider evidence of past domestic violence, sexual
violence, or abuse committed by the accused parent, including:
(i) any past or current protective order against the accused parent; or
(ii) any charge, arrest, or conviction of the accused parent for domestic violence, sexual
violence, or abuse.
(3) As part of a child custody proceeding, a court may not, solely in order to improve a
deficient relationship between the other parent and a child:
(a) remove the child from a parent or litigating party:
(i) who is competent, protective, and not physically or sexually abusive; and
(ii) with whom the child is bonded; or
(b) restrict reasonable contact between the child and a parent or litigating party:
(i) who is competent, protective, and not physically or sexually abusive; and
(ii) with whom the child is bonded.
(4) As part of a child custody proceeding:
(a) a court may not order a reunification treatment unless there is generally accepted
proof of the safety, effectiveness, and therapeutic value of the reunification treatment;
(b) a court may not order a reunification treatment that is predicated on cutting off a
child from a parent:
(i) who is competent, protective, and not physically or sexually abusive; and
(ii) with whom the child is bonded;
(c) any order to remediate the resistance of a child to have contact with a violent or
abusive parent shall primarily address the behavior of that parent or the contributions of that
parent to the resistance of the child; and
(d) any order to a parent who meets the criteria in Subsections (b)(i) and (ii), and that
requires the parent to take steps to potentially improve the child's relationship with a violent or
abusive parent, shall:
(i) prioritize the child's safety and psychological needs; and
(ii) be narrowly tailored to address specific behavior.
Section 6. Section 
78A-2-232
 is enacted to read:
 78A-2-232.
Child abuse and domestic abuse education and training for judges,
court commissioners, and court personnel.
(1) As used in this section:
(a) "Child custody proceeding" means a civil proceeding between the parents of a child
that involves the care or custody of the child including proceedings involving:
(i) divorce;
(ii) separation;
(iii) visitation;
(iv) paternity;
(v) child support;
(vi) legal or physical custody of a child; or
(vii) a civil protective order as that term is defined in Section 
78B-7-102
.
(b) "Victim service provider" means the same as that term is defined in 34 U.S.C. Sec.
12291.
(2) The state court administrator described in Section 
78A-2-105
 shall:
(a) study the training and education requirements in the Keeping Children Safe from
Family Violence Act, 34 U.S.C. Sec. 10446;
(b) develop or recommend a proposed training and education program that complies
with those requirements; and
(c) present the proposed or recommended training and education program to the
Judiciary Interim Committee on or before the committee's September 2024 interim meeting.
(3) The proposed or recommended training and education program described in
Subsection (2)(b):
(a) shall be designed to improve the ability of the courts to:
(i) recognize domestic violence and child abuse in child custody proceedings; and
(ii) make appropriate custody decisions that prioritize child safety and well-being, and
are culturally sensitive and appropriate for diverse communities;
(b) shall focus solely on domestic and sexual violence and child abuse, including:
(i) child sexual abuse;
(ii) physical abuse;
(iii) emotional abuse;
(iv) coercive control;
(v) implicit and explicit bias, including biases relating to parents with disabilities;
(vi) trauma;
(vii) long-term and short-term impacts of domestic violence and child abuse on
children; and
(viii) victim and perpetrator behavior patterns and relationship dynamics within the
cycle of violence;
(c) shall be based on evidence-based and peer-reviewed research by recognized experts
in the types of abuse described in Subsection (3)(b);
(d) shall require training to be provided by a professional with substantial experience in
assisting survivors of domestic violence or child abuse, including a victim service provider;
(e) may include input from a survivor of domestic violence or child physical or sexual
abuse;
(f) may incorporate curriculum, best practices, or other materials developed for or used
in similar training and education programs; and
(g) may not include theories, concepts, or belief systems unsupported by the research
described in Subsection (3)(c).
(4) The state court administrator's presentation described in Subsection (2)(c) shall
include:
(a) recommendations for the specific personnel positions that will be required to
participate in the program;
(b) recommendations for how the program will comply with the federal hourly
requirements;
(c) recommended performance metrics for the program and how those metrics may be
tracked; and
(d) an estimate of the costs to implement the program.
Section 7. Section 
78B-7-121
 is enacted to read:
 78B-7-121.
Requirements for proceedings between the parents of a child.
(1) (a) As used in this section, "relevant proceeding" means a civil proceeding under
this chapter:
(i) between the parents of a child;
(ii) that involves the care or custody of the child; and
(iii) that concerns a protective order under this chapter.
(b) "Relevant proceeding" does not include:
(i) any child protective, abuse, or neglect proceeding;
(ii) a juvenile justice proceeding; or
(iii) any child placement proceeding in which a state, local, or tribal government, a
designee of such a government, or any contracted child welfare agency or child protective
services agency of such a government is a party to the proceeding.
(2) In a relevant proceeding, the court shall comply with the standards described in
Section 
30-3-41
.
Section 8. 
Effective date.
This bill takes effect on May 1, 2024.