2023 Utah Code › Title 78B - Judicial Code › Chapter 6 - Particular Proceedings › Part 1 - Utah Adoption Act › Section 133 - Contested adoptions -- Rights of parties -- Determination of custody.

Effective 9/1/2021
78B-6-133.
Contested adoptions -- Rights of parties -- Determination of custody.
(1) If a person whose consent for an adoption is required pursuant to Subsection 78B-6-120(1)(b), (c), (d), (e), or (f) refused to consent, the court shall determine whether proper grounds exist for the termination of that person's rights pursuant to the provisions of this chapter or Title 80, Chapter 4, Termination and Restoration of Parental Rights.
(2)
(a) If there are proper grounds to terminate the person's parental rights, the court shall order that the person's rights be terminated.
(b) If there are not proper grounds to terminate the person's parental rights, the court shall:
(i) dismiss the adoption petition;
(ii) conduct an evidentiary hearing to determine who should have custody of the child; and
(iii) award custody of the child in accordance with the child's best interest.
(c) Termination of a person's parental rights does not terminate the right of a relative of the parent to seek adoption of the child.
(3) Evidence considered at the custody hearing may include:
(a) evidence of psychological or emotional bonds that the child has formed with a third person, including the prospective adoptive parent; and
(b) any detriment that a change in custody may cause the child.
(4) If the court dismisses the adoption petition, the fact that a person relinquished a child for adoption or consented to the adoption may not be considered as evidence in a custody proceeding described in this section, or in any subsequent custody proceeding, that it is not in the child's best interest for custody to be awarded to such person or that:
(a) the person is unfit or incompetent to be a parent;
(b) the person has neglected or abandoned the child;
(c) the person is not interested in having custody of the child; or
(d) the person has forfeited the person's parental presumption.
(5) Any custody order entered pursuant to this section may also:
(a) include provisions for:
(i) parent-time; or
(ii) visitation by an interested third party; and
(b) provide for the financial support of the child.
(6)
(a) If a person or entity whose consent is required for an adoption under Subsection 78B-6-120(1)(a) or (g) refuses to consent, the court shall proceed with an evidentiary hearing and award custody as set forth in Subsection (2).
(b) The court may also finalize the adoption if doing so is in the best interest of the child.
(7)
(a) A person may not contest an adoption after the final decree of adoption is entered, if that person:
(i) was a party to the adoption proceeding;
(ii) was served with notice of the adoption proceeding; or
(iii) executed a consent to the adoption or relinquishment for adoption.
(b) No person may contest an adoption after one year from the day on which the final decree of adoption is entered.
(c) The limitations on contesting an adoption action, described in this Subsection (7), apply to all attempts to contest an adoption:
(i) regardless of whether the adoption is contested directly or collaterally; and
(ii) regardless of the basis for contesting the adoption, including claims of fraud, duress, undue influence, lack of capacity or competency, mistake of law or fact, or lack of jurisdiction.
(d) The limitations on contesting an adoption action, described in this Subsection (7), do not prohibit a timely appeal of:
(i) a final decree of adoption; or
(ii) a decision in an action challenging an adoption, if the action was brought within the time limitations described in Subsections (7)(a) and (b).
(8) A court that has jurisdiction over a child for whom more than one petition for adoption is filed shall grant a hearing only under the following circumstances:
(a) to a petitioner:
(i) with whom the child is placed;
(ii) who has custody or guardianship of the child;
(iii) who has filed a written statement with the court within 120 days after the day on which the shelter hearing is held:
(A) requesting immediate placement of the child with the petitioner; and
(B) expressing the petitioner's intention of adopting the child;
(iv) who is a relative with whom the child has a significant and substantial relationship and who was unaware, within the first 120 days after the day on which the shelter hearing is held, of the child's removal from the child's parent; or
(v) who is a relative with whom the child has a significant and substantial relationship and, in a case where the child is not placed with a relative or is placed with a relative that is unable or unwilling to adopt the child:
(A) was actively involved in the child's child welfare case with the division or the juvenile court while the child's parent engaged in reunification services; and
(B) filed a written statement with the court that includes the information described in Subsections (8)(a)(iii)(A) and (B) within 30 days after the day on which the court terminated reunification services; or
(b) if the child:
(i) has been in the current placement for less than 180 days before the day on which the petitioner files the petition for adoption; or
(ii) is placed with, or is in the custody or guardianship of, an individual who previously informed the division or the court that the individual is unwilling or unable to adopt the child.
(9)
(a) If the court grants a hearing on more than one petition for adoption, there is a rebuttable presumption that it is in the best interest of a child to be placed for adoption with a petitioner:
(i) who has fulfilled the requirements described in Title 78B, Chapter 6, Part 1, Utah Adoption Act; and
(ii)
(A) with whom the child has continuously resided for six months;
(B) who has filed a written statement with the court within 120 days after the day on which the shelter hearing is held, as described in Subsection (8)(a)(iii); or
(C) who is a relative described in Subsection (8)(a)(iv).
(b) The court may consider other factors relevant to the best interest of the child to determine whether the presumption is rebutted.
(c) The court shall weigh the best interest of the child uniformly between petitioners if more than one petitioner satisfies a rebuttable presumption condition described in Subsection (9)(a).
(10) Nothing in this section shall be construed to prevent the division or the child's guardian ad litem from appearing or participating in any proceeding for a petition for adoption.
(11) The division shall use best efforts to provide a known relative with timely information relating to the relative's rights or duties under this section.
Amended by Chapter 262, 2021 General Session