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Tag: Amendments to Custody and Parent-Time

House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”

Today’s post on proposed family law legislation under consideration during the 2024 Utah legislative session is House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”.

This bill, according to its own description:

  • provides that a substantial and material change in circumstances for a custody order includes a parent residing with an individual, or providing the individual with access to the parent’s child, when the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual with access to the parent’s child, and the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and
  • makes technical and conforming changes.

It would amend the following code sections, if passed into law:

Utah Code § 30-3-10.4

Utah Code § 30-3-33

My thoughts on this bill:

If this bill passed, what effect would it have? A parent discovers that the person he/she resides with or to whom the parent has “provide access to his/her child(ren)” meets one or more of the child abuse/child sexual abuse factors and has to notify the other parent of this fact? So what? Unless the person is barred from contact with children, then unless that person has abused, attempted to abuse, or threatened to abuse the child(ren), what can legally be done? A child being in the presence of a child abuse ex-con is not itself a “substantial and material change of circumstances” justifying a modification of child custody or parent-time, in my view. We can’t keep punishing someone repeatedly for the same crime.

And the definition of “sex offender” gets broader all the time. You can get on the sex offender list for the silliest of things (I know a guy who went streaking in college and is on the sex offender list—it was stupid of him to go streaking, but a little kid saw him from a neighboring window and that’s what got him on the sex offender list).

Yes, living with a child abuse ex-con or providing a child abuse ex-con “access to the child(ren)” is poor judgment, but without the children being harmed or in danger of being harmed, there’s not enough to go on to do anything.

But I get it. If I were a divorced or single parent, I wouldn’t want the other parent living with a convicted sex offender either (assuming the offense was a serious one, and not one of those “he/she is on the sex offender list for public urination” kind of convictions).

It’s not a matter of how I feel about sex offenders (real sex offenses are vile), it’s whether the proposed law would do any good. I don’t think it would. Especially not in the legal system we have now. What good one perceives such a law would do and what it would actually do are quite different, in my view.

I don’t know a great deal about the sex offender registry law and other post-conviction laws. Are convicted sex offenders required to notify prospective boyfriends/girlfriends or spouses that they are convicted sex offenders currently? It is my understanding that they do not. If they do, then H.B. 140 may have stronger rational footing than I believe. If not, then the bill doesn’t appear to make much legal sense to me (meaning: I don’t see what good it will actually do, no matter how good it may feel to propose such a law).

Even if the law were passed, it would not likely be the basis for a modification of a child custody or parent-time order. Living with someone who is a convicted sex offender alone is simply not proof of any harm or sufficient danger to a child (just as living with one convicted of a violent crime, drug use, drug dealing, or other crimes is not). I don’t know the real statistics about the rate of recidivism for sex offenders, but even if we assume for the sake of discussion that it’s very high, that alone would not, in my view, likely be seen by a court as a reason to change custody. Like it or not.

If a parent resided with a sex offender with a history of repeated offenses, that might qualify as too great a risk to a child, but if we’re talking one conviction (maybe even two, sadly), that may not be enough to establish the sex offender as a danger to the children. My opinion is not based upon sympathy for sex offenders but on what I believe the courts would do in the situation you describe. This is why you’ll notice that there has not been a bill proposed that prevents a single parent or divorced parent from marrying or living with a convicted sex offender. I believe it would be found unconstitutional, that it would be found to unduly punish those who don’t re-offend.

Besides, how would one ever prove that a parent who resides with a convicted sex offender or provides him/her with access to that parent’s knows that the individual is a sex offender or worse, “an offense that is substantially similar to” a sex offense (see lines 57 and 58 of the bill, emphasis mine).

No matter how good the intent behind H.B. 140 may be, I foresee far too many adverse unintended consequences and abuses of such a law.

AMENDMENTS TO CUSTODY AND PARENT-TIME

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 30-3-10.4 is amended to read:
35          30-3-10.4. Modification or termination of order.
36          (1) The court has continuing jurisdiction to make subsequent changes to modify:
37          (a) custody of a child if there is a showing of a substantial and material change in
38     circumstances since the entry of the order; and
39          (b) parent-time for a child if there is a showing that there is a change in circumstances
40     since the entry of the order.
41          (2) A substantial and material change in circumstances under Subsection (1)(a)
42     includes a showing by a parent that the other parent:
43          (a) resides with an individual or provides an individual with access to the child; and
44          (b) knows that the individual:
45          (i) is required to register as a sex offender or a kidnap offender for an offense against a
46     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
47          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
48     Abuse Offender Registry; or
49          (iii) has been convicted of:
50          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
51     or 76-5-208;
52          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
53          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
54     Part 3, Kidnapping, Trafficking, and Smuggling;
55          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
56     Exploitation Act; or

57          (E) an offense that is substantially similar to an offense under Subsections
58     (2)(b)(iii)(A) through (D).
59          [(1)(3) On the petition of one or both of the parents, or the joint legal or physical
60     custodians if they are not the parents, the court may, after a hearing, modify or terminate an
61     order that established joint legal custody or joint physical custody if:
62          (a) the verified petition or accompanying affidavit initially alleges that admissible
63     evidence will show that the circumstances of the child or one or both parents or joint legal or
64     physical custodians have materially and substantially changed since the entry of the order to be
65     modified;
66          (b) a modification of the terms and conditions of the order would be an improvement
67     for and in the best interest of the child; and
68          (c) (i) both parents have complied in good faith with the dispute resolution procedure
69     in accordance with Subsection 30-3-10.3(7); or
70          (ii) if no dispute resolution procedure is contained in the order that established joint
71     legal custody or joint physical custody, the court orders the parents to participate in a dispute
72     resolution procedure in accordance with Subsection 30-3-10.2(5) unless the parents certify that,
73     in good faith, they have used a dispute resolution procedure to resolve their dispute.
74          [(2)(4) (a) In determining whether the best interest of a child will be served by either
75     modifying or terminating the joint legal custody or joint physical custody order, the court shall,
76     in addition to other factors the court considers relevant, consider the factors outlined in Section
77     30-3-10 and Subsection 30-3-10.2(2).
78          (b) A court order modifying or terminating an existing joint legal custody or joint
79     physical custody order shall contain written findings that:
80          (i) a material and substantial change of circumstance has occurred; and
81          (ii) a modification of the terms and conditions of the order would be an improvement
82     for and in the best interest of the child.
83          (c) The court shall give substantial weight to the existing joint legal custody or joint
84     physical custody order when the child is thriving, happy, and well-adjusted.
85          [(3)(5) The court shall, in every case regarding a petition for termination of a joint
86     legal custody or joint physical custody order, consider reasonable alternatives to preserve the
87     existing order in accordance with Subsection 30-3-10(3). The court may modify the terms and

88     conditions of the existing order in accordance with Subsection 30-3-10(8) and may order the
89     parents to file a parenting plan in accordance with this chapter.
90          [(4)(6) A parent requesting a modification from sole custody to joint legal custody or
91     joint physical custody or both, or any other type of shared parenting arrangement, shall file and
92     serve a proposed parenting plan with the petition to modify in accordance with Section
93     30-3-10.8.
94          [(5)(7) If the court finds that an action under this section is filed or answered
95     frivolously and in a manner designed to harass the other party, the court shall assess attorney
96     fees as costs against the offending party.
97          [(6)(8) If an issue before the court involves custodial responsibility in the event of
98     deployment of one or both parents who are service members, and the service member has not
99     yet been notified of deployment, the court shall resolve the issue based on the standards in
100     Sections 78B-20-306 through 78B-20-309.
101          Section 2. Section 30-3-33 is amended to read:
102          30-3-33. Advisory guidelines for a custody and parent-time arrangement.
103          (1) In addition to the parent-time schedules provided in Sections 30-3-35 and
104     30-3-35.5, the following advisory guidelines are suggested to govern [all parent-time
105     arrangementsa custody and parent-time arrangement between parents.
106          [(1)(2) [Parent-time schedulesA parent-time schedule mutually agreed upon by both
107     parents [areis preferable to a court-imposed solution.
108          [(2)(3) [TheA parent-time schedule shall be used to maximize the continuity and
109     stability of the child’s life.
110          [(3)(4) [Special consideration shall be given by each parentEach parent shall give
111     special consideration to make the child available to attend family functions including funerals,
112     weddings, family reunions, religious holidays, important ceremonies, and other significant
113     events in the life of the child or in the life of either parent which may inadvertently conflict
114     with the parent-time schedule.
115          [(4)(5) (a) The court shall determine the responsibility for the pick up, delivery, and
116     return of the child [shall be determined by the court] when the parent-time order is entered[,
117     and may be changed].
118          (b) The court may change the responsibility described in Subsection (5)(a) at any time

119     a subsequent modification is made to the parent-time order.
120          [(5)(c) If the noncustodial parent will be providing transportation, the custodial parent
121     shall:
122          (i) have the child ready for parent-time at the time the child is to be picked up [and
123     shall]; and
124          (ii) be present at the custodial home or [shall] make reasonable alternate arrangements
125     to receive the child at the time the child is returned.
126          [(6)(d) If the custodial parent will be transporting the child, the noncustodial parent
127     shall:
128          (i) be at the appointed place at the time the noncustodial parent is to receive the child[,
129     and]; and
130          (ii) have the child ready to be picked up at the appointed time and place[,] or have
131     made reasonable alternate arrangements for the custodial parent to pick up the child.
132          [(7)(6) [RegularA parent may not interrupt regular school hours [may not be
133     interrupted] for a school-age child for the exercise of parent-time [by either parent].
134          [(8)(7) The court may:
135          (a) make alterations in the parent-time schedule to reasonably accommodate the work
136     schedule of both parents [and may]; and
137          (b) increase the parent-time allowed to the noncustodial parent but may not diminish
138     the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.
139          [(9)(8) The court may make alterations in the parent-time schedule to reasonably
140     accommodate the distance between the parties and the expense of exercising parent-time.
141          [(10)(9) [Neither parent-time nor child support is to be withheld due to eitherA
142     parent may not withhold parent-time or child support due to the other parent’s failure to comply
143     with a court-ordered parent-time schedule.
144          [(11)(10) (a) The custodial parent shall notify the noncustodial parent within 24 hours
145     of receiving notice of all significant school, social, sports, and community functions in which
146     the child is participating or being honored[, and the].
147          (b) The noncustodial parent [shall beis entitled to attend and participate fully in the
148     functions described in Subsection (10)(a).
149          [(12)(c) The noncustodial parent shall have access directly to all school reports

150     including preschool and daycare reports and medical records [and shall be notified immediately
151     by the custodial parent].
152          (d) A parent shall immediately notify the other parent in the event of a medical
153     emergency.
154          [(13)(11) Each parent shall provide the other with the parent’s current address and
155     telephone number, email address, and other virtual parent-time access information within 24
156     hours of any change.
157          [(14)(12) (a) Each parent shall permit and encourage, during reasonable hours,
158     reasonable and uncensored communications with the child, in the form of mail privileges and
159     virtual parent-time if the equipment is reasonably available[, provided that if the parties].
160          (b) If the parents cannot agree on whether the equipment is reasonably available, the
161     court shall decide whether the equipment for virtual parent-time is reasonably available[,by
162     taking into consideration:
163          [(a)(i) the best interests of the child;
164          [(b)(ii) each parent’s ability to handle any additional expenses for virtual parent-time;
165     and
166          [(c)(iii) any other factors the court considers material.
167          [(15)(13) (a) Parental care [shall beis presumed to be better care for the child than
168     surrogate care [and the].
169          (b) The court shall encourage the parties to cooperate in allowing the noncustodial
170     parent, if willing and able to transport the children, to provide the child care.
171          (c) Child care arrangements existing during the marriage are preferred as are child care
172     arrangements with nominal or no charge.
173          [(16)(14) Each parent shall:
174          (a) provide all surrogate care providers with the name, current address, and telephone
175     number of the other parent [and shall]; and
176          (b) provide the noncustodial parent with the name, current address, and telephone
177     number of all surrogate care providers unless the court for good cause orders otherwise.
178          [(17)(15) (a) Each parent [shall beis entitled to an equal division of major religious
179     holidays celebrated by the parents[, and the].
180          (b) The parent who celebrates a religious holiday that the other parent does not

181     celebrate shall have the right to be together with the child on the religious holiday.
182          [(18)(16) If the child is on a different parent-time schedule than a sibling, based on
183     Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for
184     parent-time with all the minor children so that parent-time is uniform between school aged and
185     nonschool aged children, is appropriate.
186          [(19)(17) (a) When one or both parents are servicemembers or contemplating joining
187     a uniformed service, the parents should resolve issues of custodial responsibility in the event of
188     deployment as soon as practicable through reaching a voluntary agreement pursuant to Section
189     78B-20-201 or through court order obtained pursuant to Section 30-3-10.
190          (b) [ServicemembersService members shall ensure their family care plan reflects
191     orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed
192     Parents Custody, Parent-time, and Visitation Act.
193          (18) A parent shall immediately notify the other parent if:
194          (a) the parent resides with an individual or provides an individual with access to the
195     child; and
196          (b) the parent knows that the individual:
197          (i) is required to register as a sex offender or a kidnap offender for an offense against a
198     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
199          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
200     Abuse Offender Registry; or
201          (iii) has been convicted of:
202          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
203     or 76-5-208;
204          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
205          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
206     Part 3, Kidnapping, Trafficking, and Smuggling;
207          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
208     Exploitation Act; or
209          (E) an offense that is substantially similar to an offense under Subsections
210     (18)(b)(iii)(A) through (D).

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