| (1) |
Terms Used In Utah Code 30-5a-103- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guardian: includes a person who:Utah Code 68-3-12.5
- Individual other than a parent: means an individual who is not a parent and is related to the child by marriage or blood, including:
| (e) | current or former step-parents, or any of the individuals described in Subsections (1)(a) through (d) in a step relationship to the child. See Utah Code 30-5a-102- Parent: means a biological or adoptive parent. See Utah Code 30-5a-102
- Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
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| (a) |
In accordance with Section 80-2a-201, it is the public policy of this state that a parent retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of 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 an individual other than a parent who, by clear and convincing evidence, establishes that:
| (a) |
the individual has intentionally assumed the role and obligations of a parent; |
| (b) |
the individual and the child have formed a substantial emotional bond and created a parent-child type relationship; |
| (c) |
the 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 individual and the child is in the child’s best interest; |
| (f) |
the loss or cessation of the relationship between the individual and the child would substantially harm the child; and |
| (g) |
the parent:
| (ii) |
is found by a court to have abused or neglected the child. |
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| (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 where the child:
| (a) |
currently resides; or |
| (b) |
lived with a parent or an individual other than a parent who acted as a parent within six months before the commencement of the action. |
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| (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 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) |
an individual or agency that has physical custody of the child or that claims to have custody or visitation rights; and |
| (f) |
any other individual or agency that has previously appeared in any action regarding custody of or visitation with the child. |
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| (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 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:
| (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, as described in Section 76-5-404.1, or aggravated sexual abuse of a child, as described in Section 76-5-404.3; |
| (j) |
sexual exploitation of a minor, as described in Section 76-5b-201; |
| (k) |
aggravated sexual exploitation of a minor, as described in Section 76-5b-201.1; or |
| (l) |
an offense in another state that, if committed in this state, would constitute an offense described in this Subsection (10). |
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| (11) |
| (a) |
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) |
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 individual is a relative, as defined in Section 80-3-102, of the child; |
| (ii) |
at least 10 years have elapsed from the day on which the 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 individual files a petition with the court seeking custody the 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 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 80-1-102, or potential harm to the child currently or at any time in the future when considering all of the following:
| (C) |
the child’s development; |
| (D) |
the nature and seriousness of the disqualifying offense; |
| (E) |
the preferences of a child 12 years 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 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 individual who has committed the disqualifying offense ensures the best interests of the child are met; |
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| (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 |
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| (viii) |
that the continuation of the relationship between the 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). |
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| (c) |
The individual with the disqualifying offense bears the burden of proof regarding why placement with that individual is in the best interest of the child over another responsible relative or equally situated 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 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. |
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| (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. |
Amended by Chapter 185, 2022 General Session
Amended by Chapter 335, 2022 General Session
Amended by Chapter 430, 2022 General Session
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