Utah Divorce Code 30-3-33

Utah Code 30-3-33: Advisory Guidelines

In addition to the parent-time schedules provided in Sections 30-3-35 and 30-3-35.5, the following advisory guidelines are suggested to govern all parent-time arrangements between parents.
1. Parent-time schedules mutually agreed upon by both parents are preferable to a court-imposed solution.
2. The parent-time schedule shall be used to maximize the continuity and stability of the child’s life.
3. Special consideration shall be given by each parent to make the child available to attend family functions including funerals, weddings, family reunions, religious holidays, important ceremonies, and other significant events in the life of the child or in the life of either parent which may inadvertently conflict with the parent-time schedule.
4. The responsibility for the pickup, delivery, and return of the child shall be determined by the court when the parent-time order is entered, and may be changed at any time a subsequent modification is made to the parent-time order.

5. If the noncustodial parent will be providing transportation, the custodial parent shall have the child ready for parent-time at the time the child is to be picked up and shall be present at the custodial home or shall make reasonable alternate arrangements to receive the child at the time the child is returned.
6. If the custodial parent will be transporting the child, the noncustodial parent shall be at the appointed place at the time the noncustodial parent is to receive the child, and have the child ready to be picked up at the appointed time and place, or have made reasonable alternate arrangements for the custodial parent to pick up the child.
7. Regular school hours may not be interrupted for a school-age child for the exercise of parent-time by either parent.
8. The court may make alterations in the parent-time schedule to reasonably accommodate the work schedule of both parents and may increase the parent-time allowed to the noncustodial parent but may not diminish the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.
9. The court may make alterations in the parent-time schedule to reasonably accommodate the distance between the parties and the expense of exercising parent-time.
10. Neither parent-time nor child support is to be withheld due to either parent’s failure to comply with a court-ordered parent-time schedule.
11. The custodial parent shall notify the noncustodial parent within 24 hours of receiving notice of all significant school, social, sports, and community functions in which the child is participating or being honored, and the noncustodial parent shall be entitled to attend and participate fully.
12. The noncustodial parent shall have access directly to all school reports including preschool and daycare reports and medical records and shall be notified immediately by the custodial parent in the event of a medical emergency.
13. Each parent shall provide the other with the parent’s current address and telephone number, email address, and other virtual parent-time access information within 24 hours of any change.

14. Each parent shall permit and encourage, during reasonable hours, reasonable and uncensored communications with the child, in the form of mail privileges and virtual parent-time if the equipment is reasonably available, provided that if the parties cannot agree on whether the equipment is reasonably available, the court shall decide whether the equipment for virtual parent-time is reasonably available, taking into consideration:
a. the best interests of the child;
b. each parent’s ability to handle any additional expenses for virtual parent-time;
c. and any other factors the court considers material.
15. Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.
16. Each parent shall provide all surrogate care providers with the name, current address, and telephone number of the other parent and shall provide the noncustodial parent with the name, current address, and telephone number of all surrogate care providers unless the court for good cause orders otherwise.
17. Each parent shall be entitled to an equal division of major religious holidays celebrated by the parents, and the parent who celebrates a religious holiday that the other parent does not celebrate shall have the right to be together with the child on the religious holiday.
18. If the child is on a different parent-time schedule than a sibling, based on Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for parent-time with all the minor children so that parent-time is uniform between school aged and nonschool aged children, is appropriate.
19. When one or both parents are service members or contemplating joining a uniformed service, the parents should resolve issues of custodial responsibility in the event of deployment as soon as practicable through reaching a voluntary agreement pursuant to Section 78B-20-201 or through court order obtained pursuant to Section 30-3-10. Service members shall ensure their family care plan reflects orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed Parents Custody, Parent-Time, and Visitation Act.

Can Children Express Preference in Utah Custody Proceedings?

There are more children of separated parents in the Utah today than ever before. With all of the emotion surrounding a separation, parents sometimes fail to include their children’s desires in custody decisions. In many states, however, judges must consider a child’s preference when determining custody. Utah courts decide child custody whenever parents can’t come to an agreement on their own. Judges must consider a number of factors when making custody decisions, including each of the following:
• the parents’ past conduct and moral standards
• which parent is most likely to act in the child’s best interests, including allowing the child frequent contact with the other parent
• the child’s relationship with each parent
• either parent’s history of domestic violence
• the child’s special needs, if any
• the distance between the parents’ residences
• the child’s preference, if the child is old enough, and
• any other factor the court deems relevant to custody.

When Will the Court Consider a Child’s Preference?

Whether a Utah court will consider a child’s preference when deciding custody depends on the child’s age and maturity. Judges will give more weight to older children’s preferences (14 and older), and disregard the opinion of children under ten. Children between ten and 14 can have limited input on custody decisions. In one case, an 11-year old boy stated a preference to live with his father, but the judge specifically stated that an 11-year old shouldn’t have control over where he lives. Judges will also look at the reasons a child prefers to live with one parent over the other. In one case, a father with custody of two boys moved them from their hometown and away from their school, friends, and other family members. The children wanted to live with their mother to be close to friends and family, and to continue going to the school they knew. The court found that these were valid reasons to want to live with their mother and gave the children’s preferences significant weight in the custody decision. On the other hand, if a child’s reasons for wanting to live one parent are immature, for example, because one parent is more lax with discipline or gives them lavish gifts, the judge won’t give the child’s preference much weight. Even if a child has a strong custodial preference, it won’t be the controlling factor in a court’s decision. A judge can always overrule a child’s preference if it’s in the child’s best interest to live with the non-preferred parent. Judges will also watch to see if parents have coached their children. In one case, a judge questioned the children and discovered that their mother had told them to lie about her boyfriend’s overnight visits in their home. The mother’s coaching was a major factor in the judge’s decision to transfer custody to the father.

Do Children Have to Testify About Their Custodial Preferences in Court?

In Utah, children can’t testify in court unless there are extenuating circumstances, and there’s no other way to obtain their testimony. Instead, judges usually interview children in court chambers to determine their custodial preferences. Normally, the court will ask the parents for permission to interview a child, but parental consent isn’t necessary if the judge decides that an interview is the only way to figure out the child’s custodial desires. Parents can’t attend the in-chambers interview. The judge may or may not allow the parent’s attorneys to be present. Often, a court reporter will record the interview. Courts can determine a child’s preference in other ways as well. In one case, the judge deciding custody considered letters written by two boys to their mom, stating that they wanted to live with her. Courts may also allow custody evaluators or mental health professionals to testify about what children have told them regarding their custodial preferences.

Unfit Parent and Child Custody Cases in Utah

If you are filing for a divorce in Utah, it is normal for you to be concerned about the welfare of your child under your ex’s custody. If you are sure that your ex is not fit to have custody of your child, there are legal options you can use to deny them this prerogative. Proving that a parent is unfit is one of the difficult areas in child custody cases in Utah. This begs the question, when is a parent deemed unfit, and how can you prove this in court? Another concern would be whether there are other options you can pursue if you are unable to prove that your ex is lacked parental fitness.

What Does It Mean To Be An Unfit Parent?

The courts normally review the conduct of both parents while they were married and how their behavior has affected their child. The courts decide whether to terminate a parent’s rights if he/she is deemed to be unfit. A parent is deemed to be incompetent or unfit if:
• They are suffering from a mental condition that renders them incapable of attending to a child’s current and future physical and emotional needs
• They are alcoholics or drug addicts.
• They have a history of exhibiting violent behavior.
• They are abusive towards the child either physically, sexually, or emotionally.
• They habitually deprive the child of proper food, housing, clothing, education.
• They are currently in prison for a felony and they are serving a long sentence that will deprive their child of a suitable home for over one year.

Termination of Parental Rights

In Utah, if you fear for your child’s safety or if you do not feel safe with them watching your child at all, then you do have the option of terminating their parental rights. For this process, you must prove that the parent is unable to be a fit parent.

How Do You Prove That a Parent is Unfit?

The court does not assume that there is an adversarial relationship between a child and its parent without sufficient proof. When deciding to terminate a parent’s right over their child or making other related child custody decisions, the court will usually rely on what is the best interest of the child before considering the parents’ convenience and concerns regarding a child’s safety and well-being.

You can show your ex is an unfit parent by:
• Providing evidence implicating them of sexual exploitation or abuse of the child
• Providing evidence that they were convicted of a felony and how this shows their incapability to look after a child
• Providing evidence of child abuse either by showing a disfigurement or impairment caused by the parent that put the child’s life in danger
• Providing evidence of their neglect by showing death or injury of a child that the parent was responsible for: it could be a relative’s or neighbor’s child, or even the child’s sibling
• Providing evidence of the parent’s intentions to murder a child
If there’s Enough Evidence Will They Terminate the Unfit Parents’ Rights?
There are specific guidelines that are used in Utah to determine if a parent is unfit. The court decides whether or not to terminate rights and they look for evidence such as if they:
• have a mental illness or even an emotional illness that would prevent them from taking care of the child. An example of evidence would be medical records outlining this.
• are abusive (including emotionally, physically, and sexually) or even cruel to the child. You will need hard evidence of this abuse, such as a police report or medical evaluation record.
• have a substance addiction of any kind. You can use medical records or a history of drug charges for evidence.
• cannot provide basic needs such as food and clothing to the child. Examples of evidence proving they cannot afford to take care of the child would be if they never bring the child back with shoes or proper clothing such as a jacket or coat during the winter. Another example would be if the child seems to always be starving when returned or the parent doesn’t have a car seat.
• have a history of violent or negative behavior. You can use police reports for instances as your evidence.
• are in prison because of a felony charge or have a long sentence. You will need records of them currently being in jail as well as their sentencing documents.
• have exposed the child to pornography of any type on purpose. You will need actual evidence of this. You may want to have character witnesses or even photographs or video of this happening, if possible.

The courts will always keep the best interests of the child in the forefront of their decision as well as the safety and well-being of the child. This is true for terminating parental rights, custody, and more.
Terms Used In Utah Code 30-3-33
• Custodial responsibility: includes all powers and duties relating to caretaking authority and decision-making authority for a child.
• Uniformed service