When a parent can show all the factors for the "optional" 40% parent time schedule, is a court required to order it? No, it still has discretion.

July 12, 2018

Lay v. Lay, 2018 UT Ct App 137 (July 12, 2018)

Utah statutes have a “minimum” parent time (“visitation”) schedule that allows for approximately 20% overnights per year for any parent.  A few years back, a new “optional” schedule was passed into law that said for a parent who can demonstrate certain factors, a court may consider an optional schedule that allows for approximately 40% overnights per year.  It is undisputed, generally, that a court can deviate from these statutes and has broad discretion to order a parent time visitation schedule that the court believes is in the best interest of the child.

In this case the father believed that he showed all the factors required under the statute to be allowed to have the 40% schedule, but the court nevertheless did not order it. He appealed claiming that because he showed all the factors, the court should have been required to order the 40% schedule.  The court of appeals assumed that he met all the criteria that a court should consider, but disagreed that the lower court was obligated to order the 40% statute.  The court of appeals explains in part in the following exerpts:

The statute directs that “[t]he parents and the court may consider” the increased parent-time schedule under section 30-3-35.1 “as a minimum” in two circumstances: when “the parties agree,” or when “the noncustodial parent can demonstrate” the existence of certain factors. Id. § 30-3-35.1(2) (emphasis added). Those factors are: (a) the noncustodial parent has been actively involved in the child’s life; (b) the parties are able to communicate effectively regarding the child, or the noncustodial parent has a plan to accomplish effective communications regarding the child; (c) the noncustodial parent has the ability to facilitate the increased parent-time; (d) the increased parent-time would be in the best interest of the child; and (e) any other factor the court considers relevant.

[The father] contends that, if a noncustodial parent successfully demonstrates that the factors listed in Utah Code section 30-3-35.1(2) are present, then the parent-time schedule in that section “becom[es] the minimum amount of parent time that a trial court may award to the noncustodial parent.” Specifically, he asserts that once the noncustodial parent makes the required showing, the district court must order the parent-time schedule laid out in section 30-3-35.1. Lay acknowledges the statute provides that the court “may consider” the increased parent-time schedule upon such a showing, but he asserts that “[t]he word may in the statute should be construed . . . as shall.” We disagree.

Here, section 30-3-35.1’s use of the term “may,” rather than “shall,” indicates that, provided the parties agree or the noncustodial parent makes the required showing, the district court is authorized, but not required, to consider the optional increased parent-time schedule as Lay v. Lay 20170230-CA 7 2018 UT App 137 described in the statute. Stated differently, the noncustodial parent’s demonstration of the enumerated factors gives the court the discretion to consider the increased parenttime schedule, but there is no language in the statute making the court’s consideration of that schedule—much less its adoption—mandatory. Indeed,the statute describes the parenttime schedule at issue as the “optional parent-time schedule.” Utah Code Ann. § 30-3-35.1(1) (emphasis added). The use of the term “optional” indicates that the increased parenttime schedule involves a choice on the part of the district court and is “not compulsory.” See Optional, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/optional (last visited June 26, 2018) (“involving an option” and “not compulsory”); Option, Merriam-Webster.com, https://www. merriam-webster.com/dictionary/option (last visited June 26, 2018) (“an act of choosing,” “the power or right to choose,” or “something that may be chosen”).

To read full case, click here. https://www.utcourts.gov/opinions/view.html?court=appopin&opinion=Lay v. Lay20180712_20170230_137.pdf

Thank you for reading and we would live to hear comments on this topic.


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