Well, then, I have good news and bad news. Good news: you can file a motion with the court to seek relief. Bad news: prepare to wait a while before your motion gets heard, and prepare to go to mediation first, regardless of whether you want to do so.
The “Expedited Parent-time Enforcement Program” was created ostensibly to help resolve disputes over withholding/denial of parent-time. The “Expedited Parent-time Enforcement Program” currently operates only in the third judicial district, and the third district covers Salt Lake, Summit, or Tooele County.
The details of Expedited Parent-time Enforcement Program can be found in the Utah Code:
Utah Code § 81-9-102. Expedited Parent-time Enforcement Program.
(2) The Administrative Office of the Courts shall administer an Expedited Parent-time Enforcement Program in the third judicial district.
(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.
Currently, the way the third district court implements § 81-9-102 results in unnecessary and unwanted delays in addressing and resolving parent-time violations. How? Because current practice in the third district court is as follows:
1) a movant files an ex parte motion to enforce domestic relations order and for sanctions, a proposed order to attend hearing (leaving blanks for the date and time for the hearing for the court to fill out), and a request to submit the motion for decision and to have the court set the hearing date and time (§ 81-9-102(3)(a), URCP 7B(a – d)). So far, so good.
2) the clerk of the court refers the case to the administrator of the Expedited Parent-time Enforcement Program for assignment to a mediator for mediation to be held within 15 days of the filing of the motion (§ 81-9-102(3)(d)(i)). So far, so good.
3) but the court inexplicably refuses to schedule the hearing on the motion until after mediation has taken place. Why? There is no statute or rule requiring this, and there is no good reason to do this. Neither § 81-9-102 nor Rule 7B require this.
Because the court refuses to schedule the hearing on the motion until after mediation has taken place, the amount of time it takes to dispose of the motion is protracted by at least 15 days (and usually, in practice, by much more than that).
The way the courts enforce § 81-9-102(3) currently results in the following timeline:
i) File motion alleging that parent-time rights are being violated
ii) Schedule mediation
iii) Go to mediation within 15 days of the date the motion was filed (§ 81-9-102(3)(d)(i))
– If mediation cannot be scheduled to occur within 15 of filing, then I read § 81-9-102(3)(d)(i) to provide that the mediation requirement is waived/excused, but the fact is that often mediation cannot be held within 15 days and rather than waiving/excusing mediation when that occurs, I have not encountered a single judge or commissioner who does not refuse to hear a 7B motion unless and until mediation has taken place.
iv) If mediation was not successful (and yes, mediation is not always successful), settingthe hearing date (to say nothing of the actualhearing date one gets when the hearing date is finally scheduled) has now been delayed by at least 15 days because the third district refuses to schedule the 7B hearing until after mediation has been held, even though there is no provision in § 81-9-102 or Rule 7B for this. “So what?,” you may ask.
Because Rule 7B requires that service of the order to attend the hearing be given no less than 28 days before the hearing date, the current informal policy of the third district ends up causing–needlessly–hearings on 7B motions alleging that parent-time rights are being violated to take place 45 days or longer after the date the motion was filed, i.e.:
– file motion – DAY 1
– schedule mediation to take place within 15 DAYS
SUBTOTAL: 16 days (could be less, but the reality is that most attorneys delay scheduling things like this as long as they can–ask any court clerk or judicial assistant)
– then report to the court if mediation did not resolve the issue and ask for the hearing on the Rule 7B motion be scheduled (it is possible to report this the same day as mediation, so we won’t add another day here)
SUBTOTAL: 16 days (almost certainly will take longer because it usually takes several days for the judicial assistant to send counsel a list of available hearing dates and times, but for this analysis we’ll be extremely optimistic (and extremely unrealistic) and assume that the judicial assistant sends out the list of available hearing dates and times immediately after receiving notice that mediation did not resolve the dispute)
– hearing date that accommodates both parties and respective counsel agreed upon and set for 28 days hence – DAY 17
– hearing held 28 days thereafter – 45 days.
There is a better way.
This is why I propose amending Rule 7B, so that the courts cannot delay the scheduling of a 7B hearing until after mediation is scheduled or completed. There is no good reason to refuse to schedule the hearing until after mediation is scheduled or completed. All that does is cause delay and waste time. And when parent-time is being withheld, time is of the essence.
What should happen is that when a court clerk receives a motion alleging that parent-time rights are being violated, it should schedule the hearing at the same time it refers the matter to the Expedited Parent-time Enforcement Program. If the third district will not do this voluntarily, then I propose amending Rule 7B to make clear that the third district cannot delay scheduling hearings until after mediation is scheduled or completed.
And so here is my proposed amendment to URCP 7B.
(k) Procedure in the third district under Utah Code § 81-9-102. If a parent files a motion under this rule in the third district court alleging that court-ordered parent-time rights are being violated, then unless a parent is incarcerated, otherwise unavailable to meet in mediation, or excused for good cause from the requirement to mediate the clerk of the court, after assigning the case to a judge, shall refer the case to the administrator of the third judicial district Expedited Parent-time Enforcement Program for assignment to a mediator to meet with the parents within 15 days of the motion being filed.
1) if the court determines that an order to attend a hearing should issue as provided under the provisions of paragraph (d), the clerk of court shall coordinate with the parties to schedule a hearing date on the motion to take place expeditiously within the timeframe provided in paragraph (d);
2) Setting the hearing may not be conditioned upon the parents first scheduling or completing mediation; but
3) The court may continue the hearing date if it discovers that both parents could have taken reasonable steps to participate in mediation within 15 days of the motion being filed (as provided in Utah Code § 81-9-102(3)(d)(i)) but failed or refused to do so before the hearing date.
If the Expedited Parent-time Enforcement Program were to be expanded to other districts or statewide, then I would ask that my suggested paragraph (k) apply that broadly.
Utah Family Law, LC | divorceutah.com | 801-466-9277
