Utah 2023 Regular Session

Utah House Bill HB0390 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	Enrolled Copy H.B. 390
	1	+	H.B. 390
	2	+	LEGISLATIVE GENERAL COUNSEL
	3	+	6 Approved for Filing: M. Cipriano 6
	4	+	6 02-03-23 2:44 PM 6
	5	+	H.B. 390
2	6		1 CHILD CUSTODY AMENDMENTS
3	7		2 2023 GENERAL SESSION
4	8		3 STATE OF UTAH
5	9		4 Chief Sponsor: Kera Birkeland
6		-	5 Senate Sponsor: ~~Michael S. Kennedy~~
	10	+	5 Senate Sponsor: ____________
7	11		6
8	12		7LONG TITLE
9	13		8General Description:
10	14		9 This bill addresses make-up parent-time.
11	15		10Highlighted Provisions:
12	16		11 This bill:
13	17		12 <requires a court to award make-up parent-time under certain circumstances; and
14	18		13 <makes technical and conforming changes.
15	19		14Money Appropriated in this Bill:
16	20		15 None
17	21		16Other Special Clauses:
18	22		17 None
19	23		18Utah Code Sections Affected:
20	24		19AMENDS:
21	25		20 30-3-5, as last amended by Laws of Utah 2022, Chapter 263
22	26		21
23	27		22Be it enacted by the Legislature of the state of Utah:
24	28		23 Section 1. Section 30-3-5 is amended to read:
25	29		24 30-3-5. Disposition of property -- Maintenance and health care of parties and
26	30		25children -- Division of debts -- Court to have continuing jurisdiction -- Custody and
27	31		26parent-time -- Alimony -- Nonmeritorious petition for modification.
28	32		27 (1) As used in this section:
	33	+	HB0390 H.B. 390 02-03-23 2:44 PM
	34	+	- 2 -
29	35		28 (a) "Cohabit" means to live together, or to reside together on a regular basis, in the
30		-	29same residence and in a relationship of a romantic or sexual nature. H.B. 390 Enrolled Copy
31		-	- 2 -
	36	+	29same residence and in a relationship of a romantic or sexual nature.
32	37		30 (b) "Fault" means any of the following wrongful conduct during the marriage that
33	38		31substantially contributed to the breakup of the marriage:
34	39		32 (i) engaging in sexual relations with an individual other than the party's spouse;
35	40		33 (ii) knowingly and intentionally causing or attempting to cause physical harm to the
36	41		34other party or a child;
37	42		35 (iii) knowingly and intentionally causing the other party or a child to reasonably fear
38	43		36life-threatening harm; or
39	44		37 (iv) substantially undermining the financial stability of the other party or the child.
40	45		38 (c) "Length of the marriage" means, for purposes of alimony, the number of years from
41	46		39the day on which the parties are legally married to the day on which the petition for divorce is
42	47		40filed with the court.
43	48		41 (2) When a decree of divorce is rendered, the court may include in the decree of
44	49		42divorce equitable orders relating to the children, property, debts or obligations, and parties.
45	50		43 (3) The court shall include the following in every decree of divorce:
46	51		44 (a) an order assigning responsibility for the payment of reasonable and necessary
47	52		45medical and dental expenses of a dependent child, including responsibility for health insurance
48	53		46out-of-pocket expenses such as co-payments, co-insurance, and deductibles;
49	54		47 (b) (i) if coverage is or becomes available at a reasonable cost, an order requiring the
50	55		48purchase and maintenance of appropriate health, hospital, and dental care insurance for a
51	56		49dependent child; and
52	57		50 (ii) a designation of which health, hospital, or dental insurance plan is primary and
53	58		51which health, hospital, or dental insurance plan is secondary in accordance with Section
54	59		5230-3-5.4 that will take effect if at any time a dependent child is covered by both parents' health,
55	60		53hospital, or dental insurance plans;
56	61		54 (c) in accordance with Section 15-4-6.5:
57	62		55 (i) an order specifying which party is responsible for the payment of joint debts,
58	63		56obligations, or liabilities of the parties contracted or incurred during marriage;
59		-	57 (ii) an order requiring the parties to notify respective creditors or obligees, regarding Enrolled Copy H.B. 390
	64	+	57 (ii) an order requiring the parties to notify respective creditors or obligees, regarding
	65	+	58the court's division of debts, obligations, or liabilities and regarding the parties' separate, 02-03-23 2:44 PM H.B. 390
60	66		- 3 -
61		-	58the court's division of debts, obligations, or liabilities and regarding the parties' separate,
62	67		59current addresses; and
63	68		60 (iii) provisions for the enforcement of these orders;
64	69		61 (d) provisions for income withholding in accordance with Title 62A, Chapter 11,
65	70		62Recovery Services; and
66	71		63 (e) if either party owns a life insurance policy or an annuity contract, an
67	72		64acknowledgment by the court that the owner:
68	73		65 (i) has reviewed and updated, where appropriate, the list of beneficiaries;
69	74		66 (ii) has affirmed that those listed as beneficiaries are in fact the intended beneficiaries
70	75		67after the divorce becomes final; and
71	76		68 (iii) understands that if no changes are made to the policy or contract, the beneficiaries
72	77		69currently listed will receive any funds paid by the insurance company under the terms of the
73	78		70policy or contract.
74	79		71 (4) (a) The court may include, in an order determining child support, an order assigning
75	80		72financial responsibility for all or a portion of child care expenses incurred on behalf of a
76	81		73dependent child, necessitated by the employment or training of the custodial parent.
77	82		74 (b) If the court determines that the circumstances are appropriate and that the
78	83		75dependent child would be adequately cared for, the court may include an order allowing the
79	84		76noncustodial parent to provide child care for the dependent child, necessitated by the
80	85		77employment or training of the custodial parent.
81	86		78 (5) The court has continuing jurisdiction to make subsequent changes or new orders for
82	87		79the custody of a child and the child's support, maintenance, health, and dental care, and for
83	88		80distribution of the property and obligations for debts as is reasonable and necessary.
84	89		81 (6) Child support, custody, visitation, and other matters related to a child born to the
85	90		82parents after entry of the decree of divorce may be added to the decree by modification.
86	91		83 (7) (a) In determining parent-time rights of parents and visitation rights of grandparents
87	92		84and other members of the immediate family, the court shall consider the best interest of the
88		-	85child. H.B. 390 Enrolled Copy
89		-	- 4 -
	93	+	85child.
90	94		86 (b) Upon a specific finding by the court of the need for peace officer enforcement, the
91	95		87court may include in an order establishing a parent-time or visitation schedule a provision,
92	96		88among other things, authorizing any peace officer to enforce a court-ordered parent-time or
93		-	89visitation schedule entered under this chapter.
	97	+	89visitation schedule entered under this chapter. H.B. 390 02-03-23 2:44 PM
	98	+	- 4 -
94	99		90 (8) If a petition for modification of child custody or parent-time provisions of a court
95	100		91order is made and denied, the court shall order the petitioner to pay the reasonable attorney fees
96	101		92expended by the prevailing party in that action, if the court determines that the petition was
97	102		93without merit and not asserted or defended against in good faith.
98	103		94 (9) If a motion or petition alleges noncompliance with a parent-time order by a parent,
99	104		95or a visitation order by a grandparent or other member of the immediate family where a
100	105		96visitation or parent-time right has been previously granted by the court, the court:
101	106		97 (a) may award to the prevailing party:
102	107		98 [(a)] (i) actual attorney fees incurred;
103	108		99 [(b)] (ii) the costs incurred by the prevailing party because of the other party's failure to
104	109		100provide or exercise court-ordered visitation or parent-time, which may include:
105	110		101 [(i)] (A) court costs;
106	111		102 [(ii)] (B) child care expenses;
107	112		103 [(iii)] (C) transportation expenses actually incurred;
108	113		104 [(iv)] (D) lost wages, if ascertainable; [and] or
109	114		105 [(v)] (E) counseling for a child or parent if ordered or approved by the court; or
110	115		106 [(c) make-up parent time consistent with the best interest of the child; and]
111	116		107 [(d)] (iii) any other appropriate equitable remedy[.]; and
112	117		108 (b) shall award reasonable make-up parent-time to the prevailing party, unless make-up
113	118		109parent-time is not in the best interest of the child.
114	119		110 (10) (a) The court shall consider at least the following factors in determining alimony:
115	120		111 (i) the financial condition and needs of the recipient spouse;
116	121		112 (ii) the recipient's earning capacity or ability to produce income, including the impact
117		-	113of diminished workplace experience resulting from primarily caring for a child of the payor Enrolled Copy H.B. 390
118		-	- 5 -
	122	+	113of diminished workplace experience resulting from primarily caring for a child of the payor
119	123		114spouse;
120	124		115 (iii) the ability of the payor spouse to provide support;
121	125		116 (iv) the length of the marriage;
122	126		117 (v) whether the recipient spouse has custody of a minor child requiring support;
123	127		118 (vi) whether the recipient spouse worked in a business owned or operated by the payor
124	128		119spouse; and
125		-	120 (vii) whether the recipient spouse directly contributed to any increase in the payor
	129	+	120 (vii) whether the recipient spouse directly contributed to any increase in the payor 02-03-23 2:44 PM H.B. 390
	130	+	- 5 -
126	131		121spouse's skill by paying for education received by the payor spouse or enabling the payor
127	132		122spouse to attend school during the marriage.
128	133		123 (b) The court may consider the fault of the parties in determining whether to award
129	134		124alimony and the terms of the alimony.
130	135		125 (c) The court may, when fault is at issue, close the proceedings and seal the court
131	136		126records.
132	137		127 (d) As a general rule, the court should look to the standard of living, existing at the
133	138		128time of separation, in determining alimony in accordance with Subsection (10)(a). However,
134	139		129the court shall consider all relevant facts and equitable principles and may, in the court's
135	140		130discretion, base alimony on the standard of living that existed at the time of trial. In marriages
136	141		131of short duration, when no child has been conceived or born during the marriage, the court may
137	142		132consider the standard of living that existed at the time of the marriage.
138	143		133 (e) The court may, under appropriate circumstances, attempt to equalize the parties'
139	144		134respective standards of living.
140	145		135 (f) When a marriage of long duration dissolves on the threshold of a major change in
141	146		136the income of one of the spouses due to the collective efforts of both, that change shall be
142	147		137considered in dividing the marital property and in determining the amount of alimony. If one
143	148		138spouse's earning capacity has been greatly enhanced through the efforts of both spouses during
144	149		139the marriage, the court may make a compensating adjustment in dividing the marital property
145	150		140and awarding alimony.
146		-	141 (g) In determining alimony when a marriage of short duration dissolves, and no child H.B. 390 Enrolled Copy
147		-	- 6 -
	151	+	141 (g) In determining alimony when a marriage of short duration dissolves, and no child
148	152		142has been conceived or born during the marriage, the court may consider restoring each party to
149	153		143the condition which existed at the time of the marriage.
150	154		144 (11) (a) The court has continuing jurisdiction to make substantive changes and new
151	155		145orders regarding alimony based on a substantial material change in circumstances not expressly
152	156		146stated in the divorce decree or in the findings that the court entered at the time of the divorce
153	157		147decree.
154	158		148 (b) A party's retirement is a substantial material change in circumstances that is subject
155	159		149to a petition to modify alimony, unless the divorce decree, or the findings that the court entered
156	160		150at the time of the divorce decree, expressly states otherwise.
157		-	151 (c) The court may not modify alimony or issue a new order for alimony to address
	161	+	151 (c) The court may not modify alimony or issue a new order for alimony to address H.B. 390 02-03-23 2:44 PM
	162	+	- 6 -
158	163		152needs of the recipient that did not exist at the time the decree was entered, unless the court
159	164		153finds extenuating circumstances that justify that action.
160	165		154 (d) (i) In determining alimony, the income of any subsequent spouse of the payor may
161	166		155not be considered, except as provided in Subsection (10) or this Subsection (11).
162	167		156 (ii) The court may consider the subsequent spouse's financial ability to share living
163	168		157expenses.
164	169		158 (iii) The court may consider the income of a subsequent spouse if the court finds that
165	170		159the payor's improper conduct justifies that consideration.
166	171		160 (e) (i) Except as provided in Subsection (11)(e)(iii), the court may not order alimony
167	172		161for a period of time longer than the length of the marriage.
168	173		162 (ii) If a party is ordered to pay temporary alimony during the pendency of the divorce
169	174		163action, the period of time that the party pays temporary alimony shall be counted towards the
170	175		164period of time for which the party is ordered to pay alimony.
171	176		165 (iii) At any time before the termination of alimony, the court may find extenuating
172	177		166circumstances or good cause that justify the payment of alimony for a longer period of time
173	178		167than the length of the marriage.
174	179		168 (12) (a) Except as provided in Subsection (12)(b), unless a decree of divorce
175		-	169specifically provides otherwise, any order of the court that a party pay alimony to a former Enrolled Copy H.B. 390
176		-	- 7 -
	180	+	169specifically provides otherwise, any order of the court that a party pay alimony to a former
177	181		170spouse automatically terminates upon the remarriage or death of that former spouse.
178	182		171 (b) If the remarriage of the former spouse is annulled and found to be void ab initio,
179	183		172payment of alimony shall resume if the party paying alimony is made a party to the action of
180	184		173annulment and the payor party's rights are determined.
181	185		174 (13) If a party establishes that a current spouse cohabits with another individual during
182	186		175the pendency of the divorce action, the court:
183	187		176 (a) may not order the party to pay temporary alimony to the current spouse; and
184	188		177 (b) shall terminate any order that the party pay temporary alimony to the current
185	189		178spouse.
186	190		179 (14) (a) Subject to Subsection (14)(b), the court shall terminate an order that a party
187	191		180pay alimony to a former spouse if the party establishes that, after the order for alimony is
188	192		181issued, the former spouse cohabits with another individual even if the former spouse is not
189		-	182cohabiting with the individual when the party paying alimony files the motion to terminate
	193	+	182cohabiting with the individual when the party paying alimony files the motion to terminate 02-03-23 2:44 PM H.B. 390
	194	+	- 7 -
190	195		183alimony.
191	196		184 (b) A party paying alimony to a former spouse may not seek termination of alimony
192	197		185under Subsection (14)(a), later than one year from the day on which the party knew or should
193	198		186have known that the former spouse has cohabited with another individual.