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[Status][Bill Documents][Fiscal Note][Bills Directory]
S.B. 104
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UNIFORM CHILD CUSTODY ACT
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Lyle W. Hillyard
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AN ACT RELATING TO THE JUDICIAL CODE; ENACTING THE UNIFORM CHILD
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CUSTODY JURISDICTION AND ENFORCEMENT ACT; AND PROVIDING AN EFFECTIVE
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DATE.
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This act affects sections of Utah Code Annotated 1953 as follows:
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ENACTS:
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78-45c-101, Utah Code Annotated 1953
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78-45c-102, Utah Code Annotated 1953
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78-45c-103, Utah Code Annotated 1953
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78-45c-104, Utah Code Annotated 1953
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78-45c-105, Utah Code Annotated 1953
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78-45c-106, Utah Code Annotated 1953
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78-45c-107, Utah Code Annotated 1953
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78-45c-108, Utah Code Annotated 1953
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78-45c-109, Utah Code Annotated 1953
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78-45c-110, Utah Code Annotated 1953
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78-45c-111, Utah Code Annotated 1953
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78-45c-112, Utah Code Annotated 1953
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78-45c-201, Utah Code Annotated 1953
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78-45c-202, Utah Code Annotated 1953
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78-45c-203, Utah Code Annotated 1953
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78-45c-204, Utah Code Annotated 1953
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78-45c-205, Utah Code Annotated 1953
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78-45c-206, Utah Code Annotated 1953
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78-45c-207, Utah Code Annotated 1953
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78-45c-208, Utah Code Annotated 1953
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78-45c-209, Utah Code Annotated 1953
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78-45c-210, Utah Code Annotated 1953
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78-45c-301, Utah Code Annotated 1953
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78-45c-302, Utah Code Annotated 1953
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78-45c-303, Utah Code Annotated 1953
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78-45c-304, Utah Code Annotated 1953
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78-45c-305, Utah Code Annotated 1953
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78-45c-306, Utah Code Annotated 1953
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78-45c-307, Utah Code Annotated 1953
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78-45c-308, Utah Code Annotated 1953
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78-45c-309, Utah Code Annotated 1953
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78-45c-310, Utah Code Annotated 1953
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78-45c-311, Utah Code Annotated 1953
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78-45c-312, Utah Code Annotated 1953
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78-45c-313, Utah Code Annotated 1953
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78-45c-314, Utah Code Annotated 1953
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78-45c-315, Utah Code Annotated 1953
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78-45c-316, Utah Code Annotated 1953
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78-45c-317, Utah Code Annotated 1953
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78-45c-318, Utah Code Annotated 1953
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REPEALS:
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78-45c-1, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-2, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-3, as last amended by Chapter 143, Laws of Utah 1990
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78-45c-4, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-5, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-6, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-7, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-8, as last amended by Chapter 20, Laws of Utah 1995
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78-45c-9, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-10, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-11, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-12, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-13, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-14, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-15, as last amended by Chapter 3, Laws of Utah 1993
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78-45c-16, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-17, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-18, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-19, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-20, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-21, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-22, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-23, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-24, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-25, as enacted by Chapter 41, Laws of Utah 1980
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78-45c-26, as enacted by Chapter 41, Laws of Utah 1980
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
78-45c-101
is enacted to read:
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CHAPTER 45c. UTAH UNIFORM CHILD CUSTODY JURISDICTION AND
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ENFORCEMENT ACT
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Part 1. General Provisions
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78-45c-101. Title.
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This chapter is known as the "Utah Uniform Child Custody Jurisdiction and Enforcement
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Act."
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Section 2.
Section
78-45c-102
is enacted to read:
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78-45c-102. Definitions.
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As used in this chapter:
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(1) "Abandoned" means left without provision for reasonable and necessary care or
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supervision.
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(2) "Child" means an individual under 18 years of age and not married.
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(3) "Child custody determination" means a judgment, decree, or other order of a court
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providing for the legal custody, physical custody, or visitation with respect to a child. The term
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includes a permanent, temporary, initial, and modification order. The term does not include an
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order relating to child support or other monetary obligation of an individual.
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(4) "Child custody proceeding" means a proceeding in which legal custody, physical
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custody, or visitation with respect to a child is an issue. The term includes a proceeding for
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divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental
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rights, and protection from domestic violence, in which the issue may appear. The term does not
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include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement
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under Part 3, Enforcement.
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(5) "Commencement" means the filing of the first pleading in a proceeding.
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(6) "Court" means an entity authorized under the law of a state to establish, enforce, or
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modify a child custody determination.
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(7) "Home state" means the state in which a child lived with a parent or a person acting
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as a parent for at least six consecutive months immediately before the commencement of a child
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custody proceeding. In the case of a child less than six months of age, the term means the state in
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which the child lived from birth with any of the persons mentioned. A period of temporary
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absence of any of the mentioned persons is part of the period.
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(8) "Initial determination" means the first child custody determination concerning a
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particular child.
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(9) "Issuing court" means the court that makes a child custody determination for which
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enforcement is sought under this chapter.
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(10) "Issuing state" means the state in which a child custody determination is made.
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(11) "Modification" means a child custody determination that changes, replaces,
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supersedes, or is otherwise made after a previous determination concerning the same child,
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whether or not it is made by the court that made the previous determination.
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(12) "Person" includes government, governmental subdivision, agency, or instrumentality,
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or any other legal or commercial entity.
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(13) "Person acting as a parent" means a person, other than a parent, who:
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(a) has physical custody of the child or has had physical custody for a period of six
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consecutive months, including any temporary absence, within one year immediately before the
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commencement of a child custody proceeding; and
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(b) has been awarded legal custody by a court or claims a right to legal custody under the
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law of this state.
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(14) "Physical custody" means the physical care and supervision of a child.
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(15) "State" means a state of the United States, the District of Columbia, Puerto Rico, the
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United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the
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United States.
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(16) "Tribe" means an Indian tribe, or band, or Alaskan Native village which is recognized
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by federal law or formally acknowledged by a state.
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(17) "Writ of assistance" means an order issued by a court authorizing law enforcement
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officers to take physical custody of a child.
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Section 3.
Section
78-45c-103
is enacted to read:
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78-45c-103. Proceedings governed by other law.
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This chapter does not govern:
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(1) an adoption proceeding; or
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(2) a proceeding pertaining to the authorization of emergency medical care for a child.
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Section 4.
Section
78-45c-104
is enacted to read:
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78-45c-104. Application to Indian tribes.
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(1) A child custody proceeding that pertains to an Indian child as defined in the Indian
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Child Welfare Act, 25 U.S.C. 1901 et seq., is not subject to this chapter to the extent that it is
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governed by the Indian Child Welfare Act.
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(2) A court of this state shall treat a tribe as a state of the United States for purposes of Part
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1, General Provisions, and Part 2, Jurisdiction.
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(3) A child custody determination made by a tribe under factual circumstances in
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substantial conformity with the jurisdictional standards of this chapter shall be recognized and
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enforced under the provisions of Part 3, Enforcement.
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Section 5.
Section
78-45c-105
is enacted to read:
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78-45c-105. International application of chapter.
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(1) A court of this state shall treat a foreign country as a state of the United States for
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purposes of applying Part 1, General Provisions, and Part 2, Jurisdiction.
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(2) A child custody determination made in a foreign country under factual circumstances
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in substantial conformity with the jurisdictional standards of this chapter shall be recognized and
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enforced under Part 3, Enforcement.
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(3) The court need not apply the provisions of this chapter when the child custody law of
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the other country violates fundamental principles of human rights.
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Section 6.
Section
78-45c-106
is enacted to read:
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78-45c-106. Binding force of child custody determination.
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A child custody determination made by a court of this state that had jurisdiction under this
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chapter binds all persons who have been served in accordance with the laws of this state or notified
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in accordance with Section
78-45c-108
or who have submitted to the jurisdiction of the court, and
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who have been given an opportunity to be heard. The determination is conclusive as to them as
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to all decided issues of law and fact except to the extent the determination is modified.
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Section 7.
Section
78-45c-107
is enacted to read:
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78-45c-107. Priority.
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If a question of existence or exercise of jurisdiction under this chapter is raised in a child
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custody proceeding, the question, upon request of a party, shall be given priority on the calendar
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and handled expeditiously.
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Section 8.
Section
78-45c-108
is enacted to read:
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78-45c-108. Notice to persons outside state.
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(1) Notice required for the exercise of jurisdiction when a person is outside this state may
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be given in a manner prescribed by the law of this state for the service of process or by the law of
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the state in which the service is made. Notice shall be given in a manner reasonably calculated to
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give actual notice, but may be by publication if other means are not effective.
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(2) Proof of service may be made in the manner prescribed by the law of this state or by
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the law of the state in which the service is made.
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(3) Notice is not required for the exercise of jurisdiction with respect to a person who
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submits to the jurisdiction of the court.
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Section 9.
Section
78-45c-109
is enacted to read:
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78-45c-109. Appearance and limited immunity.
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(1) A party to a child custody proceeding who is not subject to personal jurisdiction in this
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state and is a responding party under Part 2, Jurisdiction, a party in a proceeding to modify a child
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custody determination under Part 2, Jurisdiction, or a petitioner in a proceeding to enforce or
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register a child custody determination under Part 3, Enforcement, may appear and participate in
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the proceeding without submitting to personal jurisdiction over the party for another proceeding
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or purpose.
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(2) A party is not subject to personal jurisdiction in this state solely by being physically
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present for the purpose of participating in a proceeding under this chapter. If a party is subject to
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personal jurisdiction in this state on a basis other than physical presence, the party may be served
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with process in this state. If a party present in this state is subject to the jurisdiction of another
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state, service of process allowable under the laws of that state may be accomplished in this state.
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(3) The immunity granted by this section does not extend to civil litigation based on acts
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unrelated to the participation in a proceeding under this chapter committed by an individual while
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present in this state.
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Section 10.
Section
78-45c-110
is enacted to read:
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78-45c-110. Communication between courts.
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(1) A court of this state may communicate with a court in another state concerning a
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proceeding arising under this chapter.
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(2) The court may allow the parties to participate in the communication. If the parties are
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not able to participate in the communication, the parties shall be given the opportunity to present
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facts and legal arguments before a decision on jurisdiction is made.
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(3) A communication between courts on schedules, calendars, court records, and similar
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matters may occur without informing the parties. A record need not be made of that
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communication.
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(4) Except as provided in Subsection (3), a record shall be made of the communication.
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The parties shall be informed promptly of the communication and granted access to the record.
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(5) For the purposes of this section, "record" means information that is inscribed on a
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tangible medium or that which is stored in an electronic or other medium and is retrievable in
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perceivable form. A record includes notes or transcripts of a court reporter who listened to a
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conference call between the courts, an electronic recording of a telephone call, a memorandum or
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an electronic record of the communication between the courts, or a memorandum or an electronic
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record made by a court after the communication.
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Section 11.
Section
78-45c-111
is enacted to read:
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78-45c-111. Taking testimony in another state.
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(1) In addition to other procedures available to a party, a party to a child custody
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proceeding may offer testimony of witnesses who are located in another state, including testimony
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of the parties and the child, by deposition or other means allowable in this state for testimony taken
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in another state. The court on its own motion may order that the testimony of a person be taken
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in another state and may prescribe the manner in which and the terms upon which the testimony
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is taken.
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(2) A court of this state may permit an individual residing in another state to be deposed
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or to testify by telephone, audiovisual means, or other electronic means before a designated court
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or at another location in that state. A court of this state shall cooperate with courts of other states
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in designating an appropriate location for the deposition or testimony.
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(3) Documentary evidence transmitted from another state to a court of this state by
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technological means that do not produce an original writing may not be excluded from evidence
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on an objection based on the means of transmission.
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Section 12.
Section
78-45c-112
is enacted to read:
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78-45c-112. Cooperation between courts -- Preservation of records.
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(1) A court of this state may request the appropriate court of another state to:
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(a) hold an evidentiary hearing;
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(b) order a person to produce or give evidence under procedures of that state;
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(c) order that an evaluation be made with respect to the custody of a child involved in a
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pending proceeding;
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(d) forward to the court of this state a certified copy of the transcript of the record of the
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hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the
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request; and
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(e) order a party to a child custody proceeding or any person having physical custody of
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the child to appear in the proceeding with or without the child.
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(2) Upon request of a court of another state, a court of this state may:
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(a) hold a hearing or enter an order described in Subsection (1); or
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(b) order a person in this state to appear alone or with the child in a custody proceeding
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in another state.
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(3) A court of this state may condition compliance with a request under Subsection (2)(b)
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upon assurance by the other state that travel and other necessary expenses will be advanced or
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reimbursed. If the person who has physical custody of the child cannot be served or fails to obey
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the order, or it appears the order will be ineffective, the court may issue a warrant of arrest against
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the person to secure his appearance with the child in the other state.
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(4) Travel and other necessary and reasonable expenses incurred under Subsections (1) and
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(2) may be assessed against the parties according to the law of this state.
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(5) A court of this state shall preserve the pleadings, orders, decrees, records of hearings,
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evaluations, and other pertinent records with respect to a child custody proceeding until the child
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attains 18 years of age. Upon appropriate request by a court or law enforcement official of another
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state, the court shall forward a certified copy of these records.
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Section 13.
Section
78-45c-201
is enacted to read:
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Part 2. Jurisdiction
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78-45c-201. Initial child custody jurisdiction.
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(1) Except as otherwise provided in Section
78-45c-204
, a court of this state has
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jurisdiction to make an initial child custody determination only if:
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(a) this state is the home state of the child on the date of the commencement of the
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proceeding, or was the home state of the child within six months before the commencement of the
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proceeding and the child is absent from this state but a parent or person acting as a parent
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continues to live in this state;
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(b) a court of another state does not have jurisdiction under Subsection (1)(a), or a court
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of the home state of the child has declined to exercise jurisdiction on the ground that this state is
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the more appropriate forum under Section
78-45c-207
or
78-45c-208
; and
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(i) the child and the child's parents, or the child and at least one parent or a person acting
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as a parent have a significant connection with this state other than mere physical presence; and
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(ii) substantial evidence is available in this state concerning the child's care, protection,
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training, and personal relationships;
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(c) all courts having jurisdiction under Subsection (1)(a) or (b) have declined to exercise
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jurisdiction on the ground that a court of this state is the more appropriate forum to determine the
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custody of the child under Section
78-45c-207
or
78-45c-208
; or
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(d) no state would have jurisdiction under Subsection (1)(a), (b), or (c).
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(2) Subsection (1) is the exclusive jurisdictional basis for making a child custody
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determination by a court of this state.
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(3) Physical presence of, or personal jurisdiction over, a party or a child is neither
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necessary nor sufficient to make a child custody determination.
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Section 14.
Section
78-45c-202
is enacted to read:
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78-45c-202. Exclusive, continuing jurisdiction.
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(1) Except as otherwise provided in Section
78-45c-204
, a court of this state that has made
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a child custody determination consistent with Section
78-45c-201
or
78-45c-203
has exclusive,
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continuing jurisdiction over the determination until:
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(a) a court of this state determines that neither the child, the child and one parent, nor the
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child and a person acting as a parent have a significant connection with this state and that
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substantial evidence is no longer available in this state concerning the child's care, protection,
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training, and personal relationships; or
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(b) a court of this state or a court of another state determines that neither the child, nor a
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parent, nor any person acting as a parent presently resides in this state.
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(2) A court of this state that has exclusive, continuing jurisdiction under this section may
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decline to exercise its jurisdiction if the court determines that it is an inconvenient forum under
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Section
78-45c-207
.
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(3) A court of this state that has made a child custody determination and does not have
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exclusive, continuing jurisdiction under this section may modify that determination only if it has
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jurisdiction to make an initial determination under Section
78-45c-201
.
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Section 15.
Section
78-45c-203
is enacted to read:
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78-45c-203. Jurisdiction to modify determination.
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Except as otherwise provided in Section
78-45c-204
, a court of this state may not modify
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a child custody determination made by a court of another state unless a court of this state has
300
jurisdiction to make an initial determination under Subsection
78-45c-201
(1)(a) or (b) and:
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(1) the court of the other state determines it no longer has exclusive, continuing
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jurisdiction under Section
78-45c-202
or that a court of this state would be a more convenient
303
forum under Section
78-45c-207
; or
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(2) a court of this state or a court of the other state determines that neither the child, nor
305
a parent, nor any person acting as a parent presently resides in the other state.
306
Section 16.
Section
78-45c-204
is enacted to read:
307
78-45c-204. Temporary emergency jurisdiction.
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(1) A court of this state has temporary emergency jurisdiction if the child is present in this
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state and the child has been abandoned or it is necessary in an emergency to protect the child
310
because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment
311
or abuse.
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(2) If there is no previous child custody determination that is entitled to be enforced under
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this chapter, and if no child custody proceeding has been commenced in a court of a state having
314
jurisdiction under Sections
78-45c-201
through
78-45c-203
, a child custody determination made
315
under this section remains in effect until an order is obtained from a court of a state having
316
jurisdiction under Sections
78-45c-201
through
78-45c-203
. If a child custody proceeding has not
317
been or is not commenced in a court of a state having jurisdiction under Sections
78-45c-201
318
through
78-45c-203
, a child custody determination made under this section becomes a final
319
determination, if:
320
(a) it so provides; and
321
(b) this state becomes the home state of the child.
322
(3) If there is a previous child custody determination that is entitled to be enforced under
323
this chapter, or a child custody proceeding has been commenced in a court of a state having
324
jurisdiction under Sections
78-45c-201
through
78-45c-203
, any order issued by a court of this
325
state under this section shall specify in the order a period of time which the court considers
326
adequate to allow the person seeking an order to obtain an order from the state having jurisdiction
327
under Sections
78-45c-201
through
78-45c-203
. The order issued in this state remains in effect
328
until an order is obtained from the other state within the period specified or the period expires.
329
(4) A court of this state that has been asked to make a child custody determination under
330
this section, upon being informed that a child custody proceeding has been commenced, or a child
331
custody determination has been made, by a court of a state having jurisdiction under Sections
332
78-45c-201
through
78-45c-203
, shall immediately communicate with the other court. A court of
333
this state that is exercising jurisdiction pursuant to Sections
78-45c-201
through
78-45c-203
, upon
334
being informed that a child custody proceeding has been commenced, or a child custody
335
determination has been made by a court of another state under a statute similar to this section shall
336
immediately communicate with the court of that state. The purpose of the communication is to
337
resolve the emergency, protect the safety of the parties and the child, and determine a period for
338
the duration of the temporary order.
339
Section 17.
Section
78-45c-205
is enacted to read:
340
78-45c-205. Notice -- Opportunity to be heard -- Joinder.
341
(1) Before a child custody determination is made under this chapter, notice and an
342
opportunity to be heard in accordance with the standards of Section
78-45c-108
shall be given to
343
all persons entitled to notice under the law of this state as in child custody proceedings between
344
residents of this state, any parent whose parental rights have not been previously terminated, and
345
any person having physical custody of the child.
346
(2) This chapter does not govern the enforceability of a child custody determination made
347
without notice and an opportunity to be heard.
348
(3) The obligation to join a party and the right to intervene as a party in a child custody
349
proceeding under this chapter are governed by the law of this state as in child custody proceedings
350
between residents of this state.
351
Section 18.
Section
78-45c-206
is enacted to read:
352
78-45c-206. Simultaneous proceedings.
353
(1) Except as otherwise provided in Section
78-45c-204
, a court of this state may not
354
exercise its jurisdiction under this chapter if at the time of the commencement of the proceeding
355
a proceeding concerning the custody of the child had been previously commenced in a court of
356
another state having jurisdiction substantially in conformity with this chapter, unless the
357
proceeding has been terminated or is stayed by the court of the other state because a court of this
358
state is a more convenient forum under Section
78-45c-207
.
359
(2) Except as otherwise provided in Section
78-45c-204
, a court of this state, before
360
hearing a child custody proceeding, shall examine the court documents and other information
361
supplied by the parties pursuant to Section
78-45c-209
. If the court determines that a child custody
362
proceeding was previously commenced in a court in another state having jurisdiction substantially
363
in accordance with this chapter, the court of this state shall stay its proceeding and communicate
364
with the court of the other state. If the court of the state having jurisdiction substantially in
365
accordance with this chapter does not determine that the court of this state is a more appropriate
366
forum, the court of this state shall dismiss the proceeding.
367
(3) In a proceeding to modify a child custody determination, a court of this state shall
368
determine whether a proceeding to enforce the determination has been commenced in another
369
state. If a proceeding to enforce a child custody determination has been commenced in another
370
state, the court may:
371
(a) stay the proceeding for modification pending the entry of an order of a court of the
372
other state enforcing, staying, denying, or dismissing the proceeding for enforcement;
373
(b) enjoin the parties from continuing with the proceeding for enforcement; or
374
(c) proceed with the modification under conditions it considers appropriate.
375
Section 19.
Section
78-45c-207
is enacted to read:
376
78-45c-207. Inconvenient forum.
377
(1) A court of this state that has jurisdiction under this chapter to make a child custody
378
determination may decline to exercise its jurisdiction at any time if it determines that it is an
379
inconvenient forum under the circumstances and that a court of another state is a more appropriate
380
forum. The issue of inconvenient forum may be raised upon the court's own motion, request of
381
another court, or motion of a party.
382
(2) Before determining whether it is an inconvenient forum, a court of this state shall
383
consider whether it is appropriate that a court of another state exercise jurisdiction. For this
384
purpose, the court shall allow the parties to submit information and shall consider all relevant
385
factors, including:
386
(a) whether domestic violence has occurred and is likely to continue in the future and
387
which state could best protect the parties and the child;
388
(b) the length of time the child has resided outside this state;
389
(c) the distance between the court in this state and the court in the state that would assume
390
jurisdiction;
391
(d) the relative financial circumstances of the parties;
392
(e) any agreement of the parties as to which state should assume jurisdiction;
393
(f) the nature and location of the evidence required to resolve the pending litigation,
394
including the testimony of the child;
395
(g) the ability of the court of each state to decide the issue expeditiously and the
396
procedures necessary to present the evidence; and
397
(h) the familiarity of the court of each state with the facts and issues of the pending
398
litigation.
399
(3) If a court of this state determines that it is an inconvenient forum and that a court of
400
another state is a more appropriate forum, it shall stay the proceedings upon condition that a child
401
custody proceeding be promptly commenced in another designated state and may impose any other
402
condition the court considers just and proper.
403
(4) A court of this state may decline to exercise its jurisdiction under this chapter if a child
404
custody determination is incidental to an action for divorce or another proceeding while still
405
retaining jurisdiction over the divorce or other proceeding.
406
Section 20.
Section
78-45c-208
is enacted to read:
407
78-45c-208. Jurisdiction declined by reason of conduct.
408
(1) Except as otherwise provided in Section
78-45c-204
or by other law of this state, if a
409
court of this state has jurisdiction under this chapter because a person invoking the jurisdiction has
410
engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
411
(a) the parents and all persons acting as parents have acquiesced in the exercise of
412
jurisdiction;
413
(b) a court of the state otherwise having jurisdiction under Sections
78-45c-201
through
414
78-45c-203
determines that this state is a more appropriate forum under Section
78-45c-207
; or
415
(c) no other state would have jurisdiction under Sections
78-45c-201
through
78-45c-203
.
416
(2) If a court of this state declines to exercise its jurisdiction pursuant to Subsection (1),
417
it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of
418
the wrongful conduct, including staying the proceeding until a child custody proceeding is
419
commenced in a court having jurisdiction under Sections
78-45c-201
through
78-45c-203
.
420
(3) If a court dismisses a petition or stays a proceeding because it declines to exercise its
421
jurisdiction pursuant to Subsection (1), it shall charge the party invoking the jurisdiction of the
422
court with necessary and reasonable expenses including costs, communication expenses, attorney's
423
fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course
424
of the proceedings, unless the party from whom fees are sought establishes that the award would
425
be clearly inappropriate. The court may not assess fees, costs, or expenses against this state except
426
as otherwise provided by law other than this chapter.
427
Section 21.
Section
78-45c-209
is enacted to read:
428
78-45c-209. Information to be submitted to court.
429
(1) In a child custody proceeding, each party, in its first pleading or in an attached
430
affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present
431
address, the places where the child has lived during the last five years, and the names and present
432
addresses of the persons with whom the child has lived during that period. The pleading or
433
affidavit shall state whether the party:
434
(a) has participated, as a party or witness or in any other capacity, in any other proceeding
435
concerning the custody of or visitation with the child and, if so, identify the court, the case number
436
of the proceeding, and the date of the child custody determination, if any;
437
(b) knows of any proceeding that could affect the current proceeding, including
438
proceedings for enforcement and proceedings relating to domestic violence, protective orders,
439
termination of parental rights, and adoptions and, if so, identify the court and the case number and
440
the nature of the proceeding; and
441
(c) knows the names and addresses of any person not a party to the proceeding who has
442
physical custody of the child or claims rights of legal custody or physical custody of, or visitation
443
with, the child and, if so, the names and addresses of those persons.
444
(2) If the information required by Subsection (1) is not furnished, the court, upon its own
445
motion or that of a party, may stay the proceeding until the information is furnished.
446
(3) If the declaration as to any of the items described in Subsection (1) is in the affirmative,
447
the declarant shall give additional information under oath as required by the court. The court may
448
examine the parties under oath as to details of the information furnished and other matters
449
pertinent to the court's jurisdiction and the disposition of the case.
450
(4) Each party has a continuing duty to inform the court of any proceeding in this or any
451
other state that could affect the current proceeding.
452
(5) If a party alleges in an affidavit or a pleading under oath that the health, safety, or
453
liberty of a party or child would be put at risk by the disclosure of identifying information, that
454
information shall be sealed and not disclosed to the other party or the public unless the court orders
455
the disclosure to be made after a hearing in which the court takes into consideration the health,
456
safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.
457
Section 22.
Section
78-45c-210
is enacted to read:
458
78-45c-210. Appearance of parties and child.
459
(1) A court of this state may order a party to a child custody proceeding who is in this state
460
to appear before the court personally with or without the child. The court may order any person
461
who is in this state and who has physical custody or control of the child to appear physically with
462
the child.
463
(2) If a party to a child custody proceeding whose presence is desired by the court is
464
outside this state, the court may order that a notice given pursuant to Section
78-45c-108
include
465
a statement directing the party to appear personally with or without the child and declaring that
466
failure to appear may result in a decision adverse to the party.
467
(3) The court may enter any orders necessary to ensure the safety of the child and of any
468
person ordered to appear under this section.
469
(4) If a party to a child custody proceeding who is outside this state is directed to appear
470
under Subsection (2) or desires to appear personally before the court with or without the child, the
471
court may require another party to pay reasonable and necessary travel and other expenses of the
472
party so appearing and of the child.
473
Section 23.
Section
78-45c-301
is enacted to read:
474
Part 3. Enforcement
475
78-45c-301. Definitions.
476
As used in this part:
477
(1) "Petitioner" means a person who seeks enforcement of a child custody determination
478
or enforcement of an order for the return of the child under the Hague Convention on the Civil
479
Aspects of International Child Abduction.
480
(2) "Respondent" means a person against whom a proceeding has been commenced for
481
enforcement of a child custody determination or enforcement of an order for the return of the child
482
under the Hague Convention on the Civil Aspects of International Child Abduction.
483
Section 24.
Section
78-45c-302
is enacted to read:
484
78-45c-302. Scope -- Hague Convention Enforcement.
485
This chapter may be invoked to enforce:
486
(1) a child custody determination; and
487
(2) an order for the return of the child made under the Hague Convention on the Civil
488
Aspects of International Child Abduction.
489
Section 25.
Section
78-45c-303
is enacted to read:
490
78-45c-303. Duty to enforce.
491
(1) A court of this state shall recognize and enforce a child custody determination of a
492
court of another state if the latter court exercised jurisdiction that was in substantial conformity
493
with this chapter or the determination was made under factual circumstances meeting the
494
jurisdictional standards of this chapter and the determination has not been modified in accordance
495
with this chapter.
496
(2) A court may utilize any remedy available under other law of this state to enforce a child
497
custody determination made by a court of another state. The procedure provided by this part does
498
not affect the availability of other remedies to enforce a child custody determination.
499
Section 26.
Section
78-45c-304
is enacted to read:
500
78-45c-304. Temporary visitation.
501
(1) A court of this state which does not have jurisdiction to modify a child custody
502
determination, may issue a temporary order enforcing:
503
(a) a visitation schedule made by a court of another state; or
504
(b) the visitation provisions of a child custody determination of another state that does not
505
provide for a specific visitation schedule.
506
(2) If a court of this state makes an order under Subsection (1)(b), it shall specify in the
507
order a period that it considers adequate to allow the petitioner to obtain an order from a court
508
having jurisdiction under the criteria specified in Part 2, Jurisdiction. The order remains in effect
509
until an order is obtained from the other court or the period expires.
510
Section 27.
Section
78-45c-305
is enacted to read:
511
78-45c-305. Registration of child custody determination.
512
(1) A child custody determination issued by a court of another state may be registered in
513
this state, with or without a simultaneous request for enforcement, by sending to the district court
514
in this state:
515
(a) a letter or other document requesting registration;
516
(b) two copies, including one certified copy, of the determination sought to be registered,
517
and a statement under penalty of perjury that to the best of the knowledge and belief of the person
518
seeking registration the order has not been modified; and
519
(c) except as otherwise provided in Section
78-45c-209
, the name and address of the
520
person seeking registration and any parent or person acting as a parent who has been awarded
521
custody or visitation in the child custody determination sought to be registered.
522
(2) On receipt of the documents required by Subsection (1), the registering court shall:
523
(a) cause the determination to be filed as a foreign judgment, together with one copy of
524
any accompanying documents and information, regardless of their form; and
525
(b) serve notice upon the persons named pursuant to Subsection (1)(c) and provide them
526
with an opportunity to contest the registration in accordance with this section.
527
(3) The notice required by Subsection (2)(b) shall state:
528
(a) that a registered determination is enforceable as of the date of the registration in the
529
same manner as a determination issued by a court of this state;
530
(b) that a hearing to contest the validity of the registered determination shall be requested
531
within 20 days after service of notice; and
532
(c) that failure to contest the registration will result in confirmation of the child custody
533
determination and preclude further contest of that determination with respect to any matter that
534
could have been asserted.
535
(4) A person seeking to contest the validity of a registered order shall request a hearing
536
within 20 days after service of the notice. At that hearing, the court shall confirm the registered
537
order unless the person contesting registration establishes that:
538
(a) the issuing court did not have jurisdiction under Part 2, Jurisdiction;
539
(b) the child custody determination sought to be registered has been vacated, stayed, or
540
modified by a court of a state having jurisdiction to do so under Part 2, Jurisdiction; or
541
(c) the person contesting registration was entitled to notice, but notice was not given in
542
accordance with the standards of Section
78-45c-108
in the proceedings before the court that
543
issued the order for which registration is sought.
544
(5) If a timely request for a hearing to contest the validity of the registration is not made,
545
the registration is confirmed as a matter of law and the person requesting registration and all
546
persons served shall be notified of the confirmation.
547
(6) Confirmation of a registered order, whether by operation of law or after notice and
548
hearing, precludes further contest of the order with respect to any matter which could have been
549
asserted at the time of registration.
550
Section 28.
Section
78-45c-306
is enacted to read:
551
78-45c-306. Enforcement of registered determination.
552
(1) A court of this state may grant any relief normally available under the law of this state
553
to enforce a registered child custody determination made by a court of another state.
554
(2) A court of this state shall recognize and enforce, but may not modify except in
555
accordance with Part 2, Jurisdiction, a registered child custody determination of another state.
556
Section 29.
Section
78-45c-307
is enacted to read:
557
78-45c-307. Simultaneous proceedings.
558
If a proceeding for enforcement under this part has been or is commenced in this state and
559
a court of this state determines that a proceeding to modify the determination has been commenced
560
in another state having jurisdiction to modify the determination under Part 2, Jurisdiction, the
561
enforcing court shall immediately communicate with the modifying court. The proceeding for
562
enforcement continues unless the enforcing court, after consultation with the modifying court,
563
stays or dismisses the proceeding.
564
Section 30.
Section
78-45c-308
is enacted to read:
565
78-45c-308. Expedited enforcement of child custody determination.
566
(1) A petition under this part shall be verified. Certified copies of all orders sought to be
567
enforced and of the order confirming registration, if any, shall be attached to the petition. A copy
568
of a certified copy of an order may be attached instead of the original.
569
(2) A petition for enforcement of a child custody determination shall state:
570
(a) whether the court that issued the determination identified the jurisdictional basis it
571
relied upon in exercising jurisdiction and, if so, what the basis was;
572
(b) whether the determination for which enforcement is sought has been vacated, stayed,
573
or modified by a court whose decision shall be enforced under this chapter or federal law and, if
574
so, identify the court, the case number of the proceeding, and the action taken;
575
(c) whether any proceeding has been commenced that could affect the current proceeding,
576
including proceedings relating to domestic violence, protective orders, termination of parental
577
rights, and adoptions and, if so, identify the court and the case number and the nature of the
578
proceeding;
579
(d) the present physical address of the child and the respondent, if known; and
580
(e) whether relief in addition to the immediate physical custody of the child and attorney's
581
fees is sought, including a request for assistance from law enforcement officials and, if so, the
582
relief sought.
583
(3) If the child custody determination has been registered and confirmed under Section
584
78-45c-305
, the petition shall also state the date and place of registration.
585
(4) The court shall issue an order directing the respondent to appear with or without the
586
child at a hearing and may enter any orders necessary to ensure the safety of the parties and the
587
child.
588
(5) The hearing shall be held on the next judicial day following service of process unless
589
that date is impossible. In that event, the court shall hold the hearing on the first day possible. The
590
court may extend the date of hearing at the request of the petitioner.
591
(6) The order shall state the time and place of the hearing and shall advise the respondent
592
that at the hearing the court will order the delivery of the child and the payment of fees, costs, and
593
expenses under Section
78-45c-312
, and may set an additional hearing to determine whether
594
further relief is appropriate, unless the respondent appears and establishes that:
595
(a) the child custody determination has not been registered and confirmed under Section
596
78-45c-305
, and that:
597
(i) the issuing court did not have jurisdiction under Part 2, Jurisdiction;
598
(ii) the child custody determination for which enforcement is sought has been vacated,
599
stayed, or modified by a court of a state having jurisdiction to do so under Part 2, Jurisdiction, or
600
federal law; or
601
(iii) the respondent was entitled to notice, but notice was not given in accordance with the
602
standards of Section
78-45c-108
in the proceedings before the court that issued the order for which
603
enforcement is sought; or
604
(b) the child custody determination for which enforcement is sought was registered and
605
confirmed under Section
78-45c-305
, but has been vacated, stayed, or modified by a court of a
606
state having jurisdiction to do so under Part 2, Jurisdiction, or federal law.
607
Section 31.
Section
78-45c-309
is enacted to read:
608
78-45c-309. Service of petition and order.
609
Except as otherwise provided in Section
78-45c-311
, the petition and order shall be served,
610
by any method authorized by the law of this state, upon respondent and any person who has
611
physical custody of the child.
612
Section 32.
Section
78-45c-310
is enacted to read:
613
78-45c-310. Hearing and order.
614
(1) Unless the court enters a temporary emergency order pursuant to Section
78-45c-204
,
615
upon a finding that a petitioner is entitled to the physical custody of the child immediately, the
616
court shall order the child delivered to the petitioner unless the respondent establishes that:
617
(a) the child custody determination has not been registered and confirmed under Section
618
78-45c-305
, and that:
619
(i) the issuing court did not have jurisdiction under Part 2, Jurisdiction;
620
(ii) the child custody determination for which enforcement is sought has been vacated,
621
stayed, or modified by a court of a state having jurisdiction to do so under Part 2, Jurisdiction, or
622
federal law; or
623
(iii) the respondent was entitled to notice, but notice was not given in accordance with the
624
standards of Section
78-45c-108
in the proceedings before the court that issued the order for which
625
enforcement is sought; or
626
(b) the child custody determination for which enforcement is sought was registered and
627
confirmed under Section
78-45c-305
, but has been vacated, stayed, or modified by a court of a
628
state having jurisdiction to do so under Part 2, Jurisdiction, or federal law.
629
(2) The court shall award the fees, costs, and expenses authorized under Section
630
78-45c-312
and may grant additional relief, including a request for the assistance of law
631
enforcement officials, and set a further hearing to determine whether additional relief is
632
appropriate.
633
(3) If a party called to testify refuses to answer on the ground that the testimony may be
634
self-incriminating, the court may draw an adverse inference from the refusal.
635
(4) A privilege against disclosure of communications between spouses and a defense of
636
immunity based on the relationship of husband and wife or parent and child may not be invoked
637
in a proceeding under this chapter.
638
Section 33.
Section
78-45c-311
is enacted to read:
639
78-45c-311. Writ to take physical custody of child.
640
(1) Upon the filing of a petition seeking enforcement of a child custody determination, the
641
petitioner may file a verified application for the issuance of a writ of assistance to take physical
642
custody of the child if the child is likely to suffer serious imminent physical harm or removal from
643
this state.
644
(2) If the court, upon the testimony of the petitioner or other witness, finds that the child
645
is likely to suffer serious imminent physical harm or be imminently removed from this state, it may
646
issue a writ of assistance to take physical custody of the child. The petition shall be heard within
647
72 hours after the writ is executed. The writ shall include the statements required by Subsection
648
78-45c-308
(2).
649
(3) A writ to take physical custody of a child shall:
650
(a) recite the facts upon which a conclusion of serious imminent physical harm or removal
651
from the jurisdiction is based;
652
(b) direct law enforcement officers to take physical custody of the child immediately; and
653
(c) provide for the placement of the child pending final relief.
654
(4) The respondent shall be served with the petition, writ, and order immediately after the
655
child is taken into physical custody.
656
(5) A writ of assistance to take physical custody of a child is enforceable throughout this
657
state. If the court finds on the basis of the testimony of the petitioner or other witness that a less
658
intrusive remedy is not effective, it may authorize law enforcement officers to enter private
659
property to take physical custody of the child. If required by the exigency of the case, the court
660
may authorize law enforcement officers to make a forcible entry at any hour.
661
(6) The court may impose conditions upon placement of a child to ensure the appearance
662
of the child and the child's custodian.
663
Section 34.
Section
78-45c-312
is enacted to read:
664
78-45c-312. Costs, fees, and expenses.
665
(1) The court shall award the prevailing party, including a state, necessary and reasonable
666
expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's
667
fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course
668
of the proceedings, unless the party from whom fees or expenses are sought establishes that the
669
award would be clearly inappropriate.
670
(2) The court may not assess fees, costs, or expenses against a state except as otherwise
671
provided by law other than this chapter.
672
Section 35.
Section
78-45c-313
is enacted to read:
673
78-45c-313. Recognition and enforcement.
674
A court of this state shall accord full faith and credit to an order made consistently with this
675
chapter which enforces a child custody determination by a court of another state unless the order
676
has been vacated, stayed, or modified by a court authorized to do so under Part 2, Jurisdiction.
677
Section 36.
Section
78-45c-314
is enacted to read:
678
78-45c-314. Appeals.
679
An appeal may be taken from a final order in a proceeding under this chapter in accordance
680
with expedited appellate procedures in other civil cases. Unless the court enters a temporary
681
emergency order under Section
78-45c-204
, the enforcing court may not stay an order enforcing
682
a child custody determination pending appeal.
683
Section 37.
Section
78-45c-315
is enacted to read:
684
78-45c-315. Role of prosecutor or attorney general.
685
(1) In a case arising under this chapter or involving the Hague Convention on the Civil
686
Aspects of International Child Abduction, the prosecutor or Attorney General may take any lawful
687
action, including resort to a proceeding under this chapter or any other available civil proceeding
688
to locate a child, obtain the return of a child, or enforce a child custody determination if there is:
689
(a) an existing child custody determination;
690
(b) a request from a court in a pending child custody case;
691
(c) a reasonable belief that a criminal statute has been violated; or
692
(d) a reasonable belief that the child has been wrongfully removed or retained in violation
693
of the Hague Convention on the Civil Aspects of International Child Abduction.
694
(2) A prosecutor or attorney general acts on behalf of the court and may not represent any
695
party to a child custody determination.
696
Section 38.
Section
78-45c-316
is enacted to read:
697
78-45c-316. Role of law enforcement.
698
At the request of a prosecutor or the Attorney General acting under Section
78-45c-315
,
699
a law enforcement officer may take any lawful action reasonably necessary to locate a child or a
700
party and assist a prosecutor or Attorney General with responsibilities under Section
78-45c-315
.
701
Section 39.
Section
78-45c-317
is enacted to read:
702
78-45c-317. Costs and expenses.
703
If the respondent is not the prevailing party, the court may assess against the respondent
704
all direct expenses and costs incurred by the prosecutor or Attorney General and law enforcement
705
officers under Section
78-45c-315
or
78-45c-316
.
706
Section 40.
Section
78-45c-318
is enacted to read:
707
78-45c-318. Transitional provision.
708
A motion or other request for relief made in a child custody or enforcement proceeding
709
which was commenced before the effective date of this chapter is governed by the law in effect at
710
the time the motion or other request was made.
711
Section 41. Repealer.
712
This act repeals:
713
Section 78-45c-1, Purposes -- Construction.
714
Section 78-45c-2, Definitions.
715
Section 78-45c-3, Bases of jurisdiction in this state.
716
Section 78-45c-4, Persons to be notified and heard.
717
Section 78-45c-5, Service of notice outside state -- Proof of service -- Submission to
718
jurisdiction.
719
Section 78-45c-6, Proceedings pending elsewhere -- Jurisdiction not exercised --
720
Inquiry to other state -- Information exchange -- Stay of proceeding on notice of another
721
proceeding.
722
Section 78-45c-7, Declining jurisdiction on finding of inconvenient forum -- Factors
723
in determination -- Communication with other court -- Awarding costs.
724
Section 78-45c-8, Misconduct of petitioner as basis for refusing jurisdiction -- Notice
725
to another jurisdiction -- Ordering petitioner to appear in other court or to return child
726
--Awarding costs.
727
Section 78-45c-9, Information as to custody of child and litigation concerning required
728
in pleadings -- Verification -- Continuing duty to inform court.
729
Section 78-45c-10, Joinder of persons having custody or claiming custody or visitation
730
rights.
731
Section 78-45c-11, Ordering party to appear -- Enforcement -- Out-of-state party --
732
Travel and other expenses.
733
Section 78-45c-12, Parties bound by custody decree -- Conclusive unless modified.
734
Section 78-45c-13, Recognition and enforcement of foreign decrees.
735
Section 78-45c-14, Modification of foreign decree -- Prerequisites -- Factors
736
considered.
737
Section 78-45c-15, Filing foreign decree -- Effect -- Enforcement -- Award of expenses.
738
Section 78-45c-16, Registry maintained by clerk of court -- Documents entered.
739
Section 78-45c-17, Certified copies of decrees furnished by clerk of court.
740
Section 78-45c-18, Taking testimony of persons in other states.
741
Section 78-45c-19, Request to court of another state to take evidence, to make studies
742
or to order appearance of party -- Payment of costs.
743
Section 78-45c-20, Taking evidence for use in court of another state -- Ordering
744
appearance in another state -- Costs -- Enforcement.
745
Section 78-45c-21, Preservation of records of proceedings -- Furnishing copies to other
746
state courts.
747
Section 78-45c-22, Requesting court records from another state.
748
Section 78-45c-23, Foreign countries -- Application of general policies.
749
Section 78-45c-24, Priority on court calendar.
750
Section 78-45c-25, Notices -- Orders to appear -- Manner of service.
751
Section 78-45c-26, Short title.
752
Section 42. Effective date.
753
This act takes effect on July 1, 2000.
Legislative Review Note
as of 12-8-99 12:53 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.