New Holiday Standard Minimum Parent-Time in Utah as of May 5, 2008
Utah Code Annotated section 30-3-35 has been revised, effective May 5, 2008, to provide a different rotation of parent-time for Holidays as compared to the statute provision in past years. In the code, “Custodial” generally is used as a reference to the parent who has primary custody or more parent-time and “non-Custodial” generally refers to the parent who has less parent-time. Remember to refer to your current court orders as a reference because the statute changes may not apply to every situation.
The following is the new holiday schedule for custodial parents in even-numbered years and non-custodial parents in odd-numbered years:
Child’s Birthday on the day before or after child’s actual birthday from 3 pm to 9 pm; Martin Luther King Jr. Day (Human Rights Day) from 6 pm on Friday to 7 pm on Monday unless the holiday from school is longer; Spring Break from 6 pm on the day school lets out for holiday until 7 pm on the Sunday before school starts; July 4th at 6 pm the day before the holiday until 11 pm on the day of holiday or no later than 6 pm on the day after the holiday, at the option of the parent exercising this holiday; Labor Day from 6 pm on Friday until 7 pm on Monday unless the holiday is longer; Fall Break from 6 pm on Wednesday until 7 pm Sunday unless the holiday is longer; Veteran’s Day from 6 pm day before holiday until 7 pm on the day of holiday; the first 1/2 of Christmas break from 6 pm on day school lets out, Christmas Eve and Christmas Day until 1 pm if the total holiday has an odd number of days and until 7 pm if there are an even number of days. (EDIT August 19, 2008: See Comments below as to Christmas Holiday.)
The following is the new holiday schedule for the custodial parents in odd-numbered years and non-custodial parents in even-numbered years:
Child’s birthday from 3 pm until 9 pm on actual birthday; President’s Day from 6 pm on Friday until 7 pm on Monday unless holiday is longer; Memorial Day from 6 pm on Friday until 7 pm on Monday unless holiday is longer; July 24th from 6 pm the day before holiday until 11 pm on the day of holiday or no later than 6 pm the day after the holiday, at the option of the parent exercising this holiday; Discoverer’s Day from 6 pm the day before the holiday until 7 pm on the holiday; Halloween on October 31st or day locally celebrated from after school or 4 pm to 9 pm; Thanksgiving from 7 pm on Wednesday until 7 pm on Sunday; the second 1/2 of Christmas Break including New Year’s Eve and Day beginning Christmas Day at 1 pm if the total holiday has odd number of days and at 7 pm if there are an even number of days. (EDIT August 19, 2008: See Comments below as to Christmas Holiday.)
Additional time allotted is Father’s Day spent with father 9 am to 7 pm on day of holiday and Mother’s Day spent with mother 9 am to 7 pm on day of holiday.
Please refer to the statute itself for more information regarding snow days, transportation, parent-time provisions other than holiday time, and other provisions that could greatly affect your parent-time.
The unanswered question at this time is whether the new rotation of holiday time and other changes to this parent-time code apply to temporary and final orders issued before May 5, 2008. This firm believes that, absent a more specific reference (meaning, an obvious attempt to have a rotation that puts in place something other than section 30-3-35) in a final decree of parent custody and parent-time, the new statute will apply. However, we have no reason to know if this will be the court’s interpretation of the code and inquiries to a few court commissioners have not been fruitful. However, judges and commissioners are in conference over the next fews weeks and we expect to attend hearings that discuss this issue.
We welcome any commentary or experiences that shed light on the application of the statute changes.
Subscribe by RSS
Subscribe by Email
August 7th, 2008 at 5:53 pm
It is my experience that these changes being applied to existing decrees, and especially in the middle of the year, is unfair to both parties. When the alternating holidays are changed to different years, it leaves parents missing 2 of a specific holiday in a row. Many parents have traditions and activities that their children miss, and to cause this to happen for 2 years in a row is unfair to the parent and the child. In my specific case, being ordered to follow 30-3-37, the change in the code will cause me to have only 2 of the 8 rotated holidays in a two year period if the changes are to be applied to existing decrees and applied immediately. This is not only unfair to me, it is unfair to the children involved. The changes, should primarily not be implemented mid-year, and secondarily not apply to an existing decree unless both parties agree to that implementation.
August 7th, 2008 at 6:54 pm
@Jodee: Thanks for contributing your comments to the blog. It will interesting to see how the judges and commissioners apply these changes at hearings regarding this specific provision. Thank you for reading the blog and for taking the time to share your thoughts and concerns.
August 19th, 2008 at 8:55 am
Your interpretation of the Christmas holiday seems incorrect to me. The exact wording of the statute is “the first portion of the Christmas school VACATION as defined in Subsection 30-3-32(3) ((”Christmas school vacation” means the time period beginning on the evening the child gets out of school for the Christmas or winter break until the evening before the child returns to school.)) including CHRISTMAS EVE AND CHRISTMAS DAY until 1PM on the day HALFWAY through the holiday, if there are an odd number of days for the holdiay period, or until 7 pm if htere are an even number of days for the holiday perios. So long as the ENTIRE HOLIDAY IS DIVIDED EQUALLY. To me this reads for example..school is out 12/24-1/4 (12 days) one parent has the child for the 1st 6 days!!
August 19th, 2008 at 9:04 am
You website reads as if you pick the child up at 1pm on Christmas day. That is incorrect according to the statute. It specifically states until 1pm HALFWAY THROUGH THE HOLIDAY, if there are an odd number of days for the holiday period. If there are an even number of days in the holiday then the parent does not pick up the child until 7pm on the dividing day. It is not 1pm on Christmas day…spliting the actual day in half. It states splitting the entire Christmas break equally. It makes sense as to why the Christmas break is outlined in Utah Code Annotated Secton 30-3-32.
August 19th, 2008 at 3:34 pm
@Mlissa Holt: Thank you for commenting on the blog.
I have reviewed the statute and your interpretation appears to be correct. The old statute provided for an exchange of parent-time on Christmas Day at 1:00 p.m., with the child being returned by 9:00 p.m. Christmas Evening. This carved out Christmas Day and Christmas Eve from the entire body of time of the holiday break (out off school period) and then referenced an overall equal division of the break.
It appears that the new statute does not carve out Christmas Eve and Christmas Day but rather includes them in the first portion of 1/2 of the entire Christmas Holiday period. The holiday is divided in half (as was true under the old statute too) but on the day of division, the exchange occurs either at 1:00 p.m. or at 7:00 p.m. depending on the number of days in the holiday.
It does lead to an interesting question as to what occurs in a school district where, or in a year when, Christmas Eve and Christmas Day fall in the second half of the school break period. I guess as long as Christmas always falls in the second half of the break, no party would be prejudiced.
Thank you for alerting us to this language. The new statute language is similar to that of the old statute, and this is where we made our error. The new statute uses the words “the first portion of the Christmas school vacation… including Christmas Eve and Christmas Day until 1 p.m. on the day halfway through the holiday, if there are an odd number of days for the holiday period….” With the old statute having provided an exchange on Christmas Day at 1 p.m., we jumped to the conclusion that this was again the legislative intent, but truly you are correct that this is not consistent with the plain language of the statute.
Thanks again for letting us know.
Sincerely, Rebecca Long Okura
September 24th, 2008 at 10:53 am
Under “Extended Parent Time” (K), the new summary does not specify allowance for 1/2 of off-track school breaks. Instead it seems only to allow up to 4 consecutive weeks a year… it also allows 2 uniterupted weeks for the custodial parent during the summer break. (So for year round kids, they could not be gone for their entire summer break.) Do you agree this new summary will disallow the option for non-custodial parent to take 1/2 of each off track time?
September 24th, 2008 at 5:03 pm
@Holly: Thanks for your inquiry. While we cannot give legal advice to you, we can turn to the code and see what effect the changes have on year-round school.
The new Utah Code Ann. sec 30-3-35 does not discuss off-track versus traditional school schedules at all. Therefore, it seems that the provisions as to holiday (Utah Code Ann. Sec. 30-3-35 (2)(c) through (j)) and extended parent-time (Utah Code Ann. Sec. 30-3-35 (2)(k)) apply regardless of whether the child’s school is traditional or year-round.
For holidays, notice paragraph Utah Code Ann. Sec. 30-3-35(e) which allows holidays to extend for the period of time during which the children are out of school and the parent is free from work. This could affect a year-round school distribution.
Note too that the code allows only two weeks to be completely uninterrupted by the other parent’s time and that custodial parents may only take that time during summer vacation.
How the code would effect your individual school situation will require that you sit down with the school calendar, your court order, and the code and determine how it applies to you specifically. Good luck!
September 25th, 2008 at 11:59 am
I have a comment regarding the what you said about holidays. You referenced paragraph Utah Code Ann. Sec. 30-3-35(e) and stated that this “allows holidays to extend for the period of time during which the children are out of school and the parent is free from work. This could affect a year-round school distribution” . If you look at the final document for H.B. 71 – http://le.utah.gov/~2008/bills/hbillenr/hb0071.htm …
it lists the “Highlighted Provisions”.
One of the provisions to the bill states: “allows for the election of an entire weekday by the noncustodial parent if school is not in session; and includes snow days, teacher development days, and other days when school is not in session in the definition of holidays.”
“School in session” doesn’t refer to “off-track time” it usually refers to days when the entire school is shut down not when one particular track is not there. Therefore a holiday can be extended during days that school is not in session not for off-track time. The particular part of Sec. 30-3-35(e) that states “the children are out of school ” was poorly worded in the bill and you have to look at the provisions in order to properly understand it.
September 25th, 2008 at 10:29 pm
@Joe: Thank you for your comment. In reviewing the final published form of the bill found at http://le.utah.gov/~code/TITLE30/htm/30_03_003500.htm, it appears that the final version as issued by the legislature is unclear. We understand your reading. It will be interesting to see what happens in practice. It may be that court commissioners and judges will look only at the child in question, rather than the school as a whole, and consider dividing longer holidays with the non-custodial parent if the child and parent are both available. If you, or any reader of this blog, has any experience with this provision in court or at mediation, please comment and let us know how the court viewed this. Thanks again for your comments.
September 26th, 2008 at 12:32 am
Today I emailed Lorie D. Fowlke Representative District 59 who sponsored the bill. She replied quickly … Here is the quote from her email back to me …
“The lines you are referencing was not part of HB 71, so remains unchanged. However, the holiday would have to be for that extended period and the parent would also have to be off work. Off track time is not part of the holiday definition.”
October 1st, 2008 at 8:12 am
In the extended Parent time part it says that:
(i) up to four weeks consecutive at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays;
(ii) two weeks shall be uninterrupted time for the noncustodial parent; and
(iii) the remaining two weeks shall be subject to parent-time for the custodial parent for weekday parent-time but not weekends, except for a holiday to be exercised by the other parent.
Can this be split up into 4 separate weeks during different times fo the year or is there just one extended parent time that can be up to four weeks?
Thanks,
Travis
October 1st, 2008 at 9:06 pm
@Joe: That is great that you went directly to a legislator for comment. That helps know what was intended. Did she mention clarifying off-track parenting in the next legislative session?
@Travis: The code does not specify any particular rules regarding how such time is to be distributed, so presumably it can be done in various ways. However, be aware of notice requirements to the other party and Utah Code Annotated 30-3-36 which discusses travel out of state with minor children.
Thank you both for commenting on the blog- I love the community interest in this topic!- Rebecca Long Okura
October 8th, 2008 at 10:29 am
I was wondering if the new changes to the parent-time schedule for 5 to 18 years of age is what parents will have to go by now even if they have a current order in place? I am curious if anyone has had the experience to find that out by the Commissioners or Judge.
October 8th, 2008 at 11:50 am
@Mandy: Thanks for posting a comment Mandy. When the legislation first passed, we believed that the court would apply it to any case in which the Order/Decree merely references the code, as well as new cases with an Order signed after the date of issuance of the new legislation. That would mean that in Orders providing specific language setting forth holiday division, the division would not be changed in accordance with the new code provisions. However, we still have not had enough time in court to determine if this is true. Most parties are taking things into their own hands and simply agreeing to follow the old rules or agreeing to adapt the new rules. Because the parties are permitted to agree to a course of action, we usually do not end up litigating it in front of the court. If anyone has taken this issue in front of a judge or commissioner, we would appreciate input on the results.
October 8th, 2008 at 2:07 pm
Thank you for the response. Its hard to figure out what to do with the new changes and a old decree. Sometimes the code is not clear and leave parents with to many questions unanswered. Example, kids that are younger than 5 years of age and are not in school, does UEA or fall break & Christmas break still apply for the parents parent-time or do they have to be in school if it says school break?
October 24th, 2008 at 3:18 pm
do we follow the new provision or do we go with what the judge ordered us to do regardless that it got changed?
November 2nd, 2008 at 6:05 pm
@Dawnell: If you have a recent court order, you should follow it. As for older orders- this is the debate many lawyers are having between themselves as well as client/parties. I spoke to a well-seasoned lawyer the other day who is confident that you follow the statute AS IT WAS when your order was signed, but I pointed out to him that some of those orders are 5, 8, 10, 15 years old and we have no idea what the statue said then. He was at a loss to answer that. As soon as I have this issue resolved by a Commissioner or Judge- I will post with the result.
November 29th, 2008 at 11:52 pm
I am having issues with this whoe Christmas definition myself. It appears to me that the language in the code is nont clear. If you read it carefully then it states an exchange at 1 p.m on Christmas day and then mentions halfway through the holiday in the same sentence. It seems to me that something is missing. My understanding is that you split Christmas Day at 1 p.m. and you ALSO split the whole Holiday equally. It could be read as follows: “Christmas Day until 1 p.m.” It can also be read this way: “until 1 p.m. on the day halfway through the holiday.” I took these from the same sentence. It seems that it is missing something but if it was intended to eliminate the mid-day exchenage on Christmas why wouldn’t this have made the news with how it can affect people?
November 30th, 2008 at 2:18 am
@John Larson: Thank you for you comment on the blog. Yes, the reading is confusing, as you point out. Particularly given that the prior version of the statute referenced 1 p.m. on Christmas Day as an exchange time every year regardless of how many days of vacation from school were in the total holiday period. The prior code provision always split Christmas Day between the parties.
Members of this firm attended a continuing legal education seminar last week and the “official” reading of the statute is that the exchange is to occur at 1 p.m. (if there are an odd number of days in the holiday break) or 7 p.m. (if there are an even number of days in the holiday break) on the day 1/2 through the Christmas holiday. In other words, parents no longer each have a portion of Christmas Day; only the parent who has the first portion of the holiday will have Christmas Eve and Day with the child, according to Utah Code Ann. sec. 30-3-35.
Also, important to note. The Judges and Commissioners attending the legal forum seemed to be in agreement that, for any order that is final, the parties are to follow Utah Code AS IT READ AT THE TIME OF THE FINAL DECREE (ORDER). In other words, some or most Judges and Commissioners are saying the new statute provisions do not apply to divorces or custody orders that precede the date of enactment of the new statute. For lawyers, that would probably mean that the best practice is to attach the current version of any statute provisions referenced in the Decree or Order so that the parties and court know what the statute said at the time the Decree was signed by the Court. Of course, Temporary Orders could be changed at the time of the final order if the statute changes during the process of the divorce or custody dispute.
January 16th, 2009 at 12:31 am
In regards to extended parent time is it true that for the remaining two weeks which is subject to parent-time the custodial parent is entitled to weekday parent-time but not to the weekend parent time except for holidays?
February 8th, 2009 at 9:52 pm
@Jane: Thank you for taking the time to comment on the blog. The code changed slightly on this issue when it was amended in May 2008. The current code says this about extended parent-time:
Utah Code Annotated section 30-3-35
(2)(k) Extended parent-time with the noncustodial parent may be:
(i) up to four weeks consecutive at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays;
(ii) two weeks shall be uninterrupted time for the noncustodial parent; and
(iii) the remaining two weeks shall be subject to parent-time for the custodial parent for weekday parent-time but not weekends, except for a holiday to be exercised by the other parent.
(l) The custodial parent shall have an identical two-week period of uninterrupted time during the children’s summer vacation from school for purposes of vacation.
(m) Both parents shall provide notification of extended parent-time or vacation weeks with the child at least 30 days in advance to the other parent and if notification is not provided timely the complying parent may determine the schedule for extended parent-time for the noncomplying parent.
As you can see, section (k) and its subsections have to do with non-custodial parent-time and section (l) has to do with custodial parent extended parent-time.
Our firm has not seen any litigation, or heard any discussions, of this particular edit to the code; it is hard to guess what a judge or commissioner would say when attempting to interpret it. However, from a plain reading, it appears that each parent has two weeks of uninterrupted parent-time each year (14 overnights uninterrupted by the other parent) and, in addition, the “non-custodial parent” (i.e. the parent with less time) gets two additional weeks of time where all of the weekend time goes to the non-custodial parent and the weekdays go to the custodial parent, with holiday time division under the code “trumping” any other parent-time. For practical purposes, that sounds merely like giving the non-custodial the option of two additional weekends which, when added to a regular rotation of weekends, could result in the non-custodial parent having three weekends back-to-back.
February 18th, 2009 at 6:47 pm
Please help me clarify if the old statute that was in place when my divorce was final is what we go by regarding visitation or if the new one takes precedence over the old one.
Thanks.
February 23rd, 2009 at 10:56 pm
I was just reading the response above concerning extended summer parent-time, but still seemed confused by the way it reads. It states Extended parent-time with the noncustodial parent may be:
(i) up to four weeks consecutive at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays;
But, then when it states that two of those weeks are only weekends for the non-custodial parent that seems like a contradiction. Why would it state “up to four weeks consecutive” if really it is only two weeks and then weekends? We already have my step-daughter on every weekend, so in this case the remaining to weeks is no benefit to us.
Is it possible to argue that stating “up to four weeks consecutive” then stating “weekends only” is a contradiction? Could we still try to get 4 full weeks and give the custodial parent only 2 based on this contradiction?
April 13th, 2009 at 3:05 pm
@Shaun: Generally the commissioners and judges are telling us that parties should follow the holiday time that was in place by code at the time of the parties most recent order, unless there has been other stipulated agreement or unless your order provides otherwise.
@Kimberlee: Agreed. The statute makes a completely muddy allotment of extended parent-time. We are uncertain how the courts will read subsection 2(k). The court could interpret it to mean four consecutive weeks, two uninterrupted by any parent-time (except holiday time to the other parent) followed immediately by two weeks of parent-time in which the other parent has one mid-week visit of a few hours, but not the weekends. OR the courts could interpret that the time can be taken in two separate blocks of time, each one being two consecutive weeks. OR the courts could interpret that the time during in the “interrupted” two weeks is to be greater weekday time than just that one brief statutory mid-week evening. It is impossible to know, particularly when so many parties are following slightly different parent-plans than the parent-time set forth in Utah Code as a minimum.
If anyone has had this issue heard by a court and received a ruling, we would love to have you comment on this blog. Thanks!
April 24th, 2009 at 12:36 pm
It also says “at the election of the noncustodial parent…” additional time may be taken (i.e., from the time school get out as opposed to 6 pm). It also says “Elections should be made by the noncustodial parent at the time of entry of the…court order…”. Does this mean that if the noncustodial parent has not elected at the time the order was put into effect to take the elections, they can’t take them at a later date (unless by mutual agreement, court order, or change in child’s schedule)?
Also it mentions that “a step-parent, grandparent, or other responsible adult…may pick the child up…if the parent will be with the child by 7pm”. Does this include extended parent-time in the summer? For example, let’s say the NCP works during the week and can’t take the time off of work to take 2 weeks uninterrupted. Can the NCP send the minor to extended family if NCP will not be able to spend time with the minor?
May 18th, 2009 at 11:37 pm
@Wendi: Both of these questions depend somewhat on what your Decree actually says. As for your first question, I do not know how restrictive a court would be if the non-custodial parent did not make the election at the time of the court order. I suspect that as long as the non-custodial parent made the election within a reasonable period of time and didn’t jump all over the place changing that election, the court would be unlikely to permanently deny the non-custodial parent to have that parent-time. However, it really depends very much on your circumstance, the language of your order, and the facts of your case as the commissioner or judge sees them.
If your Decree contains a “first-option to provide care” provision that may affect your second question. If your Decree is not specific about what to do in that circumstance, all we can turn to is the language of the statute for guidance.
Thank you for stopping by our blog. Because your questions appear to be specific to your case, we cannot give you direct legal advice but are restricted to pointing to logic, our experiences in court generally, the Code, and case law. Your own court orders often hold the key to the answers in your case. If you would like a free consultation, please call us and we can look more closely at your documents.
July 8th, 2009 at 8:16 pm
In the summary there are parts that state specifically “at the election of the NCP…” Does this imply that on the alternate years the CP would get the same elections? For example, during extended parent time for the NCP, when the CP is entitled to parent time, can the CP elect tp pick up the kids at 9AM? Or does the CP only get 5:30-8:30 mid-week visit. Another example, can the CP elect to take the entire weekend attached to the holiday as the NCP can?
September 11th, 2009 at 9:09 pm
The code says that the custodial parent gets two-weeks uninterrupted time during summer vacation. My children are in year-round school. They are only out 3 weeks during July. Between holidays and work, it is a hard time of year to take a vacation. I’ve found definitions of year-round school saying that summer vacation is divided by breaking up the long summer vacation into shorter, more frequent vacations throughout the year. Does that mean I can take my two-weeks uninterrupted when they are off track in November?
October 5th, 2009 at 7:54 pm
I need clarification on the Halloween time and any other holidays that fall on a weekend or friday or monday. My husband (non-custodial parent) and I have my son for the weekend of Halloween this year however, my son’s mother (custodial parent) has him for the holiday. Would she get him for the entire weekend? Or just for the few hours designated?
Notwithstanding Subsection (2)(e)(i) (2) (e) (i) If a holiday falls on a weekend or on a Friday or Monday and the total holiday period extends beyond that time so that the child is free from school and the parent is free from work, the noncustodial parent shall be entitled to this lengthier holiday period., the Halloween holiday may not be extended beyond the hours designated in Subsection (2)(g)(vi). (2)(g)(vi) Halloween on October 31 or the day Halloween is traditionally celebrated in the local community from after school until 9 p.m. if on a school day, or from 4 p.m. until 9 p.m.
With subsection (2)(e)(i) If a holiday falls on a weekend or on a Friday or Monday and the total holiday period extends beyond that time so that the child is free from school and the parent is free from work, the noncustodial parent shall be entitled to this lengthier holiday period.
Does that also mean that the custodial parent gets the same consideration on those holidays that fall on a weekend or on a Friday or Monday or is that just for non-custodial parents?
December 15th, 2009 at 11:35 pm
can u give me and example for the christmas portion ,for the non custodial parent, my kid’s gets off school on 12/23/2009. For how many days he will have the kid’s
July 4th, 2010 at 4:18 pm
In section (2)(c) it contains the following sentences: Holidays include any “snow” days, … , contiguous to the holiday period, and take precedence over the weekend parent time. Changes may not be made to the regular rotation of the alternating weekend parent time schedule;
To me, these are contradictory sentences. If the custodial parent’s holiday falls on the non-custodial parent’s weekend parent-time, who gets the children? The first sentence says, in this case, the custodial parent gets the children. The second sentence says the non-custodial parent gets the children. This scenario is coming up soon and I would like to know how this should play out. Thank you.