Separation and divorce is difficult and emotional. Sadly, children are often used as a tool by one parent to inflict injury on the other parent. Parents commonly withhold parent-time when a new spouse or significant other enters the picture. In addition, parent-time may be wrongfully withheld due to non-payment of child support or disputes over parental decisions.
In some cases, a parent may withhold parent-time due to legitimate concerns with regard to the children’s safety and well-being. When one parent learns that the other has engaged in abusive or neglectful conduct or has been charged with a serious criminal offense, there may be good cause to keep the children away from the offending parent.
It may take several months to bring parent-time disputes before the court, resulting in prolonged harm to the parent who has been denied his/her right to see the children. For this reason, the Utah legislature has created an expedited process for resolving parent-time disputes.
Utah Code 30-3-38 requires all parent-time disputes to be assigned to a mediator, as well as to a judge and commissioner. The mediator works with the parents to address all parent-time issues within 15 days. The mediator may require the parents to attend counseling, use a supervised parent-time agency or enroll in educational courses. Parent-time disputes are brought before the court only after the mediator either negotiates an agreement between the parents or finds that a mediated agreement is unlikely.
If either parent alleges physical or sexual abuse during the mediation process, the mediator must immediately bring the matter before the court for entry of protective orders. In addition, the mediator is required to report the allegations to the Division of Child and Family Services.
Typically, mediation fees are divided equally between the parties. However, the court may order one parent to pay the entire cost upon a finding that the parent refused to mediate in good faith or made an unfounded allegation of abuse.
30-3-38. (Effective 05/01/13). Expedited Parent-time Enforcement Program.
(1) There is established an Expedited Parent-time Enforcement Program in the third judicial district to be administered by the Administrative Office of the Courts.
(2) As used in this section:
(a) “Mediator” means a person who:
(i) is qualified to mediate parent-time disputes under criteria established by the Administrative Office of the Courts; and
(ii) agrees to follow billing guidelines established by the Administrative Office of the Courts and this section.
(b) “Services to facilitate parent-time” or “services” means services designed to assist families in resolving parent-time problems through:
(ii) supervised parent-time;
(iii) neutral drop-off and pick-up;
(iv) educational classes; and
(v) other related activities.
(3) (a) If a parent files a motion in the third district court alleging that court-ordered parent-time rights are being violated, the clerk of the court, after assigning the case to a judge, shall refer the case to the administrator of this program for assignment to a mediator, unless a parent is incarcerated or otherwise unavailable. Unless the court rules otherwise, a parent residing outside of the state is not unavailable. The director of the program for the courts, the court, or the mediator may excuse either party from the requirement to mediate for good cause.
(b) Upon receipt of a case, the mediator shall:
(i) meet with the parents to address parent-time issues within 15 days of the motion being filed;
(ii) assess the situation;
(iii) facilitate an agreement on parent-time between the parents; and
(iv) determine whether a referral to a service provider under Subsection (3)(c) is warranted.
(c) While a case is in mediation, a mediator may refer the parents to a service provider designated by the Department of Human Services for services to facilitate parent-time if:
(i) the services may be of significant benefit to the parents; or
(ii) (A) a mediated agreement between the parents is unlikely; and
(B) the services may facilitate an agreement.
(d) At any time during mediation, a mediator shall terminate mediation and transfer the case to the administrator of the program for referral to the judge or court commissioner to whom the case was assigned under Subsection (3)(a) if:
(i) a written agreement between the parents is reached; or
(ii) the parents are unable to reach an agreement through mediation and:
(A) the parents have received services to facilitate parent-time;
(B) both parents object to receiving services to facilitate parent-time; or
(C) the parents are unlikely to benefit from receiving services to facilitate parent-time.
(e) Upon receiving a case from the administrator of the program, a judge or court commissioner may:
(i) review the agreement of the parents and, if acceptable, sign it as an order;
(ii) order the parents to receive services to facilitate parent-time;
(iii) proceed with the case; or
(iv) take other appropriate action.
(4) (a) If a parent makes a particularized allegation of physical or sexual abuse of a child who is the subject of a parent-time order against the other parent or a member of the other parent’s household to a mediator or service provider, the mediator or service provider shall immediately report that information to:
(i) the judge assigned to the case who may immediately issue orders and take other appropriate action to resolve the allegation and protect the child; and
(ii) the Division of Child and Family Services within the Department of Human Services in the manner required by Title 62A, Chapter 4a, Part 4, Child Abuse or Neglect Reporting Requirements.
(b) If an allegation under Subsection (4)(a) is made against a parent with parent-time rights or a member of that parent’s household, parent-time by that parent shall, pursuant to an order of the court, be supervised until:
(i) the allegation has been resolved; or
(ii) a court orders otherwise.
(c) Notwithstanding an allegation under Subsection (4)(a), a mediator may continue to mediate parent-time problems and a service provider may continue to provide services to facilitate parent-time unless otherwise ordered by a court.
(5) (a) The Department of Human Services may contract with one or more entities in accordance with Title 63G, Chapter 6a, Utah Procurement Code, to provide:
(i) services to facilitate parent-time;
(ii) case management services; and
(iii) administrative services.
(b) An entity who contracts with the Department of Human Services under Subsection (5)(a) shall:
(i) be qualified to provide one or more of the services listed in Subsection (5)(a); and
(ii) agree to follow billing guidelines established by the Department of Human Services and this section.
(6) (a) Except as provided in Subsection (6)(b), the cost of mediation shall be:
(i) reduced to a sum certain;
(ii) divided equally between the parents; and
(iii) charged against each parent taking into account the ability of that parent to pay under billing guidelines adopted in accordance with this section.
(b) A judge may order a parent to pay an amount in excess of that provided for in Subsection (6)(a) if the parent:
(i) failed to participate in good faith in mediation or services to facilitate parent-time; or
(ii) made an unfounded assertion or claim of physical or sexual abuse of a child.
(c) (i) The cost of mediation and services to facilitate parent-time may be charged to parents at periodic intervals.
(ii) Mediation and services to facilitate parent-time may only be terminated on the ground of nonpayment if both parents are delinquent.
(7) (a) The Judicial Council may make rules to implement and administer the provisions of this program related to mediation.
(b) The Department of Human Services may make rules to implement and administer the provisions of this program related to services to facilitate parent-time.
(8) (a) The Administrative Office of the Courts shall adopt outcome measures to evaluate the effectiveness of the mediation component of this program. Progress reports shall be provided to the Judiciary Interim Committee as requested by the committee.
(b) The Department of Human Services shall adopt outcome measures to evaluate the effectiveness of the services component of this program. Progress reports shall be provided to the Judiciary Interim Committee as requested by the committee.
(c) The Administrative Office of the Courts and the Department of Human Services may adopt joint outcome measures and file joint reports to satisfy the requirements of Subsections (7)(a) and (b).
(9) The Department of Human Services shall, by following the procedures and requirements of Title 63J, Chapter 5, Federal Funds Procedures, apply for federal funds as available.