Trial Court Can: (1) Appoint Special Master and Require Professional Supervision for Exchanges; (2) Require a 3 Hour Minimum Before ROFR; and (3) Adjust Parent-Time Specific that Do Not Exceed Statutory Minimum Parent-Time

Wight v. Wight., 2011 UT App 424, Utah Court of Appeals December 15, 2011

Husband appeals the Decree of divorce on 12 different grounds.  The Court of appeals found that Husband’s appeal failed procedurally on several issues.

THIRD PARTY SUPERVISED EXCHANGES

The Court of appeals affirmed the trial court’s order for the third party supervising agency for parent-time exchanges based on “ample and compelling emotional issues between the parties,” and because the agency had been beneficial to the parties by helping them communicate, and limiting potential emotional issues occurring between the parties at the exchange.

SPECIAL MASTER FOR PARENT-TIME ISSUES

The Court further affirmed the appointment of a special master because based on the record, the parties had agreed to the appointment for the resolution of parent-time disputes. The Court found that Special Masters can be appointed under URCP 53 and are permitted to “do or perform particular acts.”  Further, because the appointment did not limit the parties ability to object to the orders of the special master, the appointment was appropriate under URCP 53.

RIGHT OF FIRST REFUSAL

The Court also affirmed the three hour minimum before the noncustodial parent could provide daycare for the minor children.  The Court of Appeals noted that the statute (§30-3-33(15)) does not give a right to provide day care, it simply states that “parental care is preferred to surrogate care.”

SPECIFIC EXCHANGE TIME

Father argued that the Court exceeded its discretion by ordering that pickup time in the summer midweek parent-time would be at 5:30 when U.C.A. §30-3-35 would allow Father to pick-up the children at 9:00 am.  The Court of Appeals affirmed the specific pick-up times were appropriate because the statute is the minimum schedule and the schedule that the Court imposed allowed for two midweeks and thus exceeded the minimum parent-time requirements and as such did not violate the statute.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/wight121511.pdf

Custody and Visitation: Upon Divorce, Ex Stepparents Have No Standing to Petition Visitation

Strauss v. Tuschman, 2009 UT App. 215, (Utah Court of Appeals, August 6, 2009).

Stepfather developed a parental relationship with Daughter, a child from Mother’s prior relationship. Upon separation, Stepfather requested visitation with the child. Mother allowed it, and the district court granted Stepfather visitation. Visitation became increasing difficult to facilitate. The district court bifurcated the case and signed a divorce decree. Stepfather continued to attempt visitation. Mother now objected to visitation. The district court continued to enforce Father’s visitation under Gribble v. Gribble, 583 P.25 (Utah 1978).

Prior to the trial Mother filed a motion in limine arguing that Stepfather had no standing under the newly decided case of Jones v. Barlow, 154 P.3d 808 (Utah 2007). This time the district court agreed and found that Stepfather lacked standing. Stepfather appealed. The Utah Court of Appeals affirmed the trial court and found that while parties are married a non-biological father may stand in loco parentis and may have standing to petition visitation. However, upon divorce the biological parent may end the in loco parentis relationship at will. Thus eliminating Stepparent’s standing.

Unrelated note: the Court did not award attorney fees to mother because she failed to set forth a legal basis for such an award.

Full Decision available http://www.utcourts.gov/opinions/appopin/strauss080609.pdf

Custody: Joint-Custody Cannot Be Ordered Unless One of the Parties Submits a Parenting Plan

Trubetzkoy v. Trubetzkoy, 2009 UT App. 77, ---P.3d---, (Utah Court of Appeals, March 19, 2009).

Sergei Trubeztkoy was awarded joint-legal custody of the parties’ minor children, and a larger portion of the marital estate. Leslie Smith Trubetzkoy (Wife) appealed the trial court’s decisions as to custody, parent-time, the accounting of the business, and grounds for divorce. The Court of appeals affirmed the property distribution and the grounds for divorce, but reversed and remanded the trial court decision on custody.

The Court found that before a trial court can award joint-legal custody either or both parties must submit a proposed parenting plan. Without a parenting-plan the trial court cannot award joint-custody of the children. If a parenting plan has been submitted, then the court should then evaluate the best interests of the children. Addtionally, the court found that the statutory parent-time schedule is presumed to be in the best interests of the children. The burden is on the party attempting to deviate from the statute. Mother failed to justify the deviation. While the property distribution was disproportionate it was not disproportionate enough to be an abuse of discretion. Wife’s final request was for the Court to change the grounds of divorce from irreconcilable differences to adultery. The Court denied this request because it was based solely on Wife’s preference.

Full Decision available at http://www.utcourts.gov/opinions/appopin/trubetzkoy031909.pdf