Utah Divorce Code 30-3-35.1

Utah Code 30-3-35.1: Optional Schedule for Parent-Time for Children 5 To 18 Years of Age

1. The optional parent-time schedule in this section applies to children 5 to 18 years of age. This schedule is 145 overnights. Any impact on child support shall be consistent with Subsection 78B-12-102(15).
2. The parents and the court may consider the following increased parent-time schedule as a minimum when the parties agree or the noncustodial parent can demonstrate the following:
a. the noncustodial parent has been actively involved in the child’s life;
b. the parties are able to communicate effectively regarding the child, or the noncustodial parent has a plan to accomplish effective communications regarding the child;
c. the noncustodial parent has the ability to facilitate the increased parent-time;
d. the increased parent-time would be in the best interest of the child; and
e. any other factor the court considers relevant.
3. In determining whether a noncustodial parent has been actively involved in the child’s life, the court shall consider:
a. demonstrated responsibility in caring for the child;
b. involvement in day care;
c. presence or volunteer efforts in the child’s school and at extracurricular activities;
d. assistance with the child’s homework;
e. involvement in preparation of meals, bath time, and bedtime for the child;
f. bonding with the child; and
g. any other factor the court considers relevant.
4. In determining whether a noncustodial parent has the ability to facilitate the increased parent-time, the court shall consider:
a. the geographic distance between the residences of the parents and the distance between the parents’ residences and the child’s school;
b. the noncustodial parent’s ability to assist with after school care;
c. the health of the child and the noncustodial parent, consistent with Subsection 30-3-10(4);
d. flexibility of employment or other schedule of the parent;
e. ability to provide appropriate playtime with the child;
f. history and ability of the parent to implement a flexible schedule for the child;
g. physical facilities of the noncustodial parent’s residence; and
h. any other factor the court considers relevant.
5. An election required to be made in accordance with this section by either parent concerning parent-time shall be made a part of the decree and made a part of the parent-time order. An election may only be changed by mutual agreement, court order, or by the noncustodial parent in the event of a change in the child’s schedule.

6. If the parties agree or the court enters an order for the optional parent-time schedule as set forth in this section, a parenting plan in compliance with Sections 30-3-10.7 through 30-3-10.10 shall be filed with any order incorporating the following optional parent-time schedule:
a. The noncustodial parent or the court may specify one weekday for parent-time. If no day is specified, weekday parent-time shall be on Wednesday from 5:30 p.m. until the following day when delivering the child to school, or until 8 a.m., if there is no school the following day. Once the election of the weekday is made, it may only be changed in accordance with Subsection (5). At the election of the noncustodial parent, weekday parent-time may commence: from the time the child’s school is regularly dismissed; or if school is not in session and the parent is available to be with the child, at approximately 8 a.m., accommodating the custodial parents work schedule.
b. Beginning on the first weekend after the entry of the decree, the noncustodial parent shall be entitled to alternating weekends beginning on the first weekend after the entry of the decree from 6 p.m. on Friday until Monday when delivering the child to school, or until 8 a.m. if there is no school on Monday. At the election of the noncustodial parent, weekend parent-time may commence: from the time the child’s school is regularly dismissed on Friday; or if school is not in session and the parent is available to be with the child, at approximately 8 a.m. on Friday, accommodating the custodial parents work schedule.
c. Subsections 30-3-35(2) through are incorporated into this section and constitute the parent-time schedule with the exception that all instances that require the noncustodial parent to return the child at any time after 6 p.m. be changed so that the noncustodial parent is required to return the child to school the next morning or at 8 a.m., if there is no school.

7. A stepparent, grandparent, or other responsible adult designated by the noncustodial parent may pick up the child if the custodial parent is aware of the identity of the individual, and if the noncustodial parent will be with the child by 7 p.m.
8. Weekends include any “snow” days, teacher development days, or other days when school is not scheduled and that are contiguous to the weekend period.
9. Holidays include any “snow” days, teacher development days after the child begins the school year, or other days when school is not scheduled, contiguous to the holiday period, and take precedence over weekend parent-time. Changes may not be made to the regular rotation of the alternating weekend parent-time schedule.
a. If a holiday falls on a school day, the noncustodial parent shall be responsible for the child’s attendance at school for that school day.
b. If a holiday falls on a weekend or on a Friday or Monday and the total holiday period extends beyond that time so that the child is free from school and the parent is free from work, the noncustodial parent shall be entitled to this lengthier holiday period.
c. At the election of the noncustodial parent, parent-time over a scheduled holiday weekend may begin from the time the child’s school is dismissed at the beginning of the holiday weekend or, if school is not in session, and if the noncustodial parent is available to be with the child, parent-time over a scheduled holiday weekend may begin at approximately 8 a.m., accommodating the custodial parents work schedule, unless the court directs the application of Subsection (6)(a).
10. Birthdays take precedence over holidays and extended parent-time, except Mother’s Day and Father’s Day. Birthdays do not take precedence over uninterrupted parent-time if the parent exercising uninterrupted time is out of town for the uninterrupted extended parent-time. At the discretion of the noncustodial parent, other siblings may be taken along for birthdays.
11. Notwithstanding Subsection (9)(b), the Halloween holiday may not be extended beyond the hours designated in Subsection 30-3-35(2)(g)(vi).
12. If there are children aged 5 to 18 and children under the age of five who are the natural or adopted children of the parties, the parents and the court should consider an upward deviation for parent-time with all the minor children so that parent-time is uniform based on a schedule pursuant to this section.

Shared Parenting Guidelines

The bill would create a new optional parent-time schedule for parents who cannot independently agree to a parenting plan. The bill would also establish a rebuttable presumption that such a schedule is in the best interests of children. The optional schedule would award a new minimum of 145 parenting nights to non-custodial parents. This schedule would only apply to children between ages 5 and 18. Under the bill, this schedule could only be ordered if the non-custodial parent demonstrated sufficient involvement in the child’s life. Courts would also need to consider other factors to determine whether shared parenting would best suit the child. These factors could include the non-custodial parent’s finances, the distance between both homes and the ability of both parents to communicate cooperatively. Utah courts would retain the power to order other arrangements if equal parenting time was not considered best for the child. Parents would also be able to challenge the presumption that shared parenting time is the ideal arrangement for a child.

Requesting Other Arrangements

Under the bill, a parent could challenge the presumption that the optional schedule most benefits a child on various grounds. These include the following issues:
• Danger to the child – family law courts will not support an arrangement that might harm a child’s physical or emotional well-being. When awarding custody, a court may weigh allegations of domestic violence or abuse, regardless of whether the allegations have been proven.
• Parental commitment and availability – the court may consider whether the non-custodial parent is reliable, available and involved in the child’s life. The court may choose not to use the optional schedule if a parent frequently misses or ignores scheduled parenting time.
• The child’s interests and preferences – the court may take the child’s own desires into account. The court may also consider whether the child has any interests in common with the non-custodial parent.
As these considerations show, the passage of the bill would not necessarily guarantee more parenting time for every non-custodial parent. Each family has a unique dynamic. In every divorce, the behaviors, relationships and past actions of both parents can significantly influence the final custody arrangement.

Guidance During Divorce

This proposed change illustrates the complexity of custody decisions and the evolving nature of custody laws. Given these complicating factors, parents preparing for divorces in Utah should consider seeking legal guidance. A family law attorney may be able to offer advice on pursuing an agreeable outcome for parents and children alike.

Make A Solid Parenting Plan

When you are in the middle of a difficult divorce, it’s important to establish a solid parenting plan right at the beginning. It doesn’t matter if you’re going to fight over every last dish, your children deserve the structure and stability a clear parenting plan provides. As you consider a visitation schedule, think about what will work best for the kids first. Think about any school schedules, distance from each residence to activities, and time you aren’t working to come up with a good plan.
• Make a Parenting Schedule Right Away: It’s hard enough on your kids, when both of their parents decide to split. They need stability, and a routine they can count on will help make the split a little easier on them. When you have children and you are going through a divorce, the first thing you should establish is a parenting schedule. The faster you can create a plan that works for everyone, the quicker your children will be able to adjust to their new circumstances.
• Be Reasonable When Establishing a Custody and Parenting Arrangement: Although a contentious divorce is difficult to go through, you have to take a step back and try to be reasonable when it comes to your children. Look at the relationship your children have with each parent, and remember that children do best when they are allowed to continue to have a strong relationship with both parents. While you may hate the other person, your children love them. While you may want to point out every flaw the other parent has, this is not going to help your children when it comes down to establishing custody.

• Clarify Your Concerns Regarding Custody: If you have legitimate concerns regarding your ex’s ability to parent your children, be clear on what your concerns are. While you may not like their parenting style, this is not a reason for your concern. On the other hand, if you are worried that the other parent has a continual drug addiction, this needs to be discussed. When you make a parenting plan and you don’t raise your initial concerns, it will be much more difficult to get a custody arrangement changed later.
• Respect the Needs of Your Children: Children do not need to be put in the middle of your divorce. They need to know that both parents love them, and that both parents want to be part of their lives. Grilling the children about what the other parent is doing will put them in the middle. Telling your children how horrible the other parent is will only confuse them. Respect the needs of your child by enjoying them when they are with you, doing your best to parent them. What the other parent’s personal life looks like is none of your business, and you will do better to move on.
• Consider What Your Children Want: Little children aren’t really able to verbalize what they want out of a custody arrangement, but older children can. If you have a teenager, for example, they may want to stay in the same home during the week while they are at school. They may have a very busy life, and not be interested in hanging out after school. Maybe you were an absent parent, always on the road working. While it may be hard to agree that the child should spend more time with the other parent, your sacrifice will make the divorce easier on your children.
• Think About Your Support Network: Having children is hard, and raising them without a support network is nearly impossible. Think about your new life, and how being divorced is going to impact your support network. If you had a close relationship with your mother-in-law who always babysat, you can forget that resource. Look at the people around you, and those you believe will still be around once the dust settles from your divorce. While you can’t create a custody schedule based on support alone, it’s important that you have the help you need if an emergency arises.
• Use One Form of Communication with Your Ex: If the two of you struggle to communicate in a civil manner, it’s important to establish one form of communication right away. Many couples utilize an online software program, where both parties can send messages, a calendar can be created, and all communication between the two of you can be recorded in one place. The court system will look at this communication when there are issues brought forth to the court, and both parties will be held responsible for what they are communicating with the other person.
• Understand Your Rights as a Parent: When there are no concerns raised, you have the right to parent your children 50% of the time. While this may be difficult, it’s important to understand that you have the legal right to be in the lives of your children on a regular basis. Shared legal and shared physical custody entitles you to regular visitation, and decision-making in all aspects of their lives, including education and medical decisions. While the other parent may try to prohibit you from making decisions, you need to know that you have the legal right and obligation to help make these decisions. You should be attending school meetings, appointments with medical providers, and any other important events that occur on behalf of your child.