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First Substitute S.B. 106
Senator Terry R. Spencer proposes the following substitute bill:
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DIVORCE - CHILDREN'S TESTIMONY
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LIMITED
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2002 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Terry R. Spencer
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This act modifies the circumstances under which children may testify in a divorce.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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30-3-10, as last amended by Chapter 255, Laws of Utah 2001
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
30-3-10
is amended to read:
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30-3-10. Custody of children in case of separation or divorce -- Custody
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consideration.
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(1) If a husband and wife having minor children are separated, or their marriage is declared
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void or dissolved, the court shall make an order for the future care and custody of the minor
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children as it considers appropriate.
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(a) In determining custody, the court shall consider the best interests of the child and the
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past conduct and demonstrated moral standards of each of the parties. [The]
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(b) The children may not be required by either party to testify unless the trier of fact
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determines that extenuating circumstances exist that would necessitate the testimony of the
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children be heard and there is no other reasonable method to present their testimony.
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(c) The court may inquire of the children and take into consideration the children's desires
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regarding future custody or parent-time schedules, but the expressed desires are not controlling and
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the court may determine the children's custody or parent-time otherwise. The desires of a child
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16 years of age or older shall be given substantial weight, but is not the single controlling factor.
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(d) Interviews with the children may be conducted by the judge in camera only with the
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prior consent of the parties.
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(2) In awarding custody, the court shall consider, among other factors the court finds
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relevant, which parent is most likely to act in the best interests of the child, including allowing the
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child frequent and continuing contact with the noncustodial parent as the court finds appropriate.
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(3) If the court finds that one parent does not desire custody of the child, or has attempted
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to permanently relinquish custody to a third party, it shall take that evidence into consideration in
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determining whether to award custody to the other parent.
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(4) (a) A court may not discriminate against a parent due to a disability, as defined in
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Section
57-21-2
, in awarding custody or determining whether a substantial change has occurred
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for the purpose of modifying an award of custody.
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(b) If a court takes a parent's disability into account in awarding custody or determining
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whether a substantial change has occurred for the purpose of modifying an award of custody, the
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parent with a disability may rebut any evidence, presumption, or inference arising therefrom by
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showing that:
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(i) the disability does not significantly or substantially inhibit the parent's ability to provide
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for the physical and emotional needs of the child at issue; or
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(ii) the parent with a disability has sufficient human, monetary, or other resources available
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to supplement the parent's ability to provide for the physical and emotional needs of the child at
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issue.
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(c) Nothing in this section may be construed to apply to:
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(i) abuse, neglect, or dependency proceedings under Title 62A, Chapter 4a, Child and
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Family Services, or Title 78, Chapter 3a, Juvenile [Courts] Court Act of 1996; or
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(ii) adoption proceedings under Title 78, Chapter 30, Adoption.
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