Utah Code 81-9-208. Modification or termination of a custody or parent-time order — Noncompliance with a parent-time order
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(1) The court has continuing jurisdiction to make subsequent changes to modify:
Terms Used In Utah Code 81-9-208
- Abuse: means the same as that term is defined in Section
80-1-102 . See Utah Code 81-9-101 - Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Child: means , except as provided in Section
81-6-101 , a biological or adopted child of any age. See Utah Code 81-1-101 - Court: means :(2)(a) a judge; or(2)(b) a court commissioner if the court commissioner has authority to hear the matter under Section
78A-5-107 or the Utah Rules of Judicial Administration. See Utah Code 81-1-101- Custodial responsibility: includes physical custody, legal custody, parenting time, right to access, parent-time, and authority to grant limited contact with a minor child. See Utah Code 81-9-101
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Joint legal custody: means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified. See Utah Code 81-9-101
- Joint physical custody: means the minor child stays with each parent overnight for more than 30% of the year and both parents contribute to the expenses of the minor child in addition to paying child support. See Utah Code 81-9-101
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Minor child: means , except as provided in Section
81-6-101 , a child who is younger than 18 years old and is not emancipated. See Utah Code 81-1-101- Parent: means a parent with an established parent-child relationship as described in Section
78B-15-201 . See Utah Code 81-1-101- Parenting plan: includes the allocation of parenting functions that are incorporated in any final decree or decree of modification including an action for dissolution of marriage, annulment, legal separation, or paternity. See Utah Code 81-9-101
- Service member: means a member of a uniformed service. See Utah Code 81-9-101
- Sex: means , in relation to an individual, the individual's biological sex, either male or female, at birth, according to distinct reproductive roles as manifested by:
(34)(a) sex and reproductive organ anatomy;(34)(b) chromosomal makeup; and(34)(c) endogenous hormone profiles. See Utah Code 68-3-12.5(1)(a) custody of a minor child if there is a showing of a substantial and material change in circumstances since the entry of the order; and(1)(b) parent-time for a minor child if there is a showing that there is a change in circumstances since the entry of the order.(2) A substantial and material change in circumstances under Subsection (1)(a) includes a showing by a parent that the other parent:(2)(a) resides with an individual or provides an individual with access to the minor child; and(2)(b) knows that the individual:(2)(b)(i) is required to register as a sex offender or a kidnap offender for an offense against a minor child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;(2)(b)(ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child Abuse Offender Registry; or(2)(b)(iii) has been convicted of:(2)(b)(iii)(A) a child abuse offense under Section76-5-109 ,76-5-109.2 ,76-5-109.3 ,76-5-114 , or76-5-208 ;(2)(b)(iii)(B) a sexual offense against a minor child under Title 76, Chapter 5, Part 4, Sexual Offenses;(2)(b)(iii)(C) an offense for kidnapping or human trafficking of a minor child under Title 76, Chapter 5, Part 3, Kidnapping, Trafficking, and Smuggling;(2)(b)(iii)(D) a sexual exploitation offense against a minor child under Title 76, Chapter 5b, Sexual Exploitation Act; or(2)(b)(iii)(E) an offense that is substantially similar to an offense under Subsections (2)(b)(iii)(A) through (D).(3) On the petition of one or both of the parents, or the joint legal or physical custodians if they are not the parents, the court may, after a hearing, modify or terminate an order that established joint legal custody or joint physical custody if:(3)(a) the verified petition or accompanying affidavit initially alleges that admissible evidence will show that there has been a substantial and material change in the circumstances of the minor child or one or both parents or joint legal or physical custodians since the entry of the order to be modified;(3)(b) a modification of the terms and conditions of the order would be an improvement for and in the best interest of the minor child; and(3)(c)(3)(c)(i) both parents have complied in good faith with the dispute resolution procedure in accordance with Subsection81-9-205 (8); or(3)(c)(ii) if no dispute resolution procedure is contained in the order that established joint legal custody or joint physical custody, the court orders the parents to participate in a dispute resolution procedure in accordance with Subsection81-9-205 (13) unless the parents certify that, in good faith, they have used a dispute resolution procedure to resolve their dispute.(4)(4)(a) In determining whether the best interest of a minor child will be served by either modifying or terminating the joint legal custody or joint physical custody order, the court shall, in addition to other factors the court considers relevant, consider the factors described in Sections81-9-204 and81-9-205 .(4)(b) A court order modifying or terminating an existing joint legal custody or joint physical custody order shall contain written findings that:(4)(b)(i) a substantial and material change of circumstance has occurred; and(4)(b)(ii) a modification of the terms and conditions of the order would be an improvement for and in the best interest of the minor child.(4)(c) The court shall give substantial weight to the existing joint legal custody or joint physical custody order when the minor child is thriving, happy, and well-adjusted.(5) The court shall, in every case regarding a petition for termination of a joint legal custody or joint physical custody order, consider reasonable alternatives to preserve the existing order in accordance with Section81-9-204 .(6) The court may modify the terms and conditions of the existing order in accordance with this chapter and may order the parents to file a parenting plan in accordance with Section81-9-203 .(7) A parent requesting a modification from sole custody to joint legal custody or joint physical custody or both, or any other type of shared parenting arrangement, shall file and serve a proposed parenting plan with the petition to modify in accordance with Section81-9-203 .(8) If an issue before the court involves custodial responsibility in the event of deployment of one or both parents who are service members, and the service member has not yet been notified of deployment, the court shall resolve the issue based on the standards in Sections78B-20-306 through78B-20-309 .(9) If the court finds that an action to modify custody or parent-time is filed or answered frivolously and, in a manner, designed to harass the other party, the court shall assess attorney fees as costs against the offending party.(10) If a petition to modify custody or parent-time provisions of a court order is made and denied, the court shall order the petitioner to pay the reasonable attorney fees expended by the prevailing party in that action if the court determines that the petition was without merit and not asserted or defended against in good faith.(11) If a motion or petition alleges noncompliance with a parent-time order by a parent, or a visitation order by a grandparent or other member of the immediate family where a visitation or parent-time right has been previously granted by the court, the court:(11)(a) may award to the prevailing party:(11)(a)(i) actual attorney fees incurred;(11)(a)(ii) the costs incurred by the prevailing party because of the other party’s failure to provide or exercise court-ordered visitation or parent-time, including:(11)(a)(ii)(A) court costs;(11)(a)(ii)(B) child care expenses;(11)(a)(ii)(C) transportation expenses actually incurred;(11)(a)(ii)(D) lost wages, if ascertainable; or(11)(a)(ii)(E) counseling for a parent or a minor child if ordered or approved by the court; or(11)(a)(iii) any other appropriate equitable remedy; and(11)(b) shall award reasonable make-up parent-time to the prevailing party, unless make-up parent-time is not in the best interest of the minor child.