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