The Utah Court of Appeals recently had the opportunity to decide whether Utah’s optional minimum parent-time schedule is just that – optional — as opposed to mandatory if certain elements are shown.

In Lay v. Lay, 2018 UT App. 137, the Court was invited by the Appellant to determine that, if the noncustodial parent can demonstrate the following elements, then the optional minimum parent-time schedule of Utah Code Section 30-3-35.1 is mandatory: 1) the noncustodial parent has been actively involved in the child’s life; 2) the parents are able to communicate effectively regarding the child; or the noncustodial parent has a plan to establish effective communication; 3) the noncustodial parent has the ability to facilitate increased parent-time; 4) the increased parent-time would be in the best interests of the child; and 5) any other factor the court considers relevant. The Court declined this invitation.

The Court relied upon a plain reading of the word “may”, which connotes an exercise of discretion, as opposed to the word “shall”, which is mandatory language.

Following the Lay’s divorce, Mr. Lay had parent-time of six overnights in every rolling 14-day period. The child was three years old at the time of the divorce. When the child reached school age, the parties agreed to modify this parent-time schedule for the child’s stability because of father’s work schedule. For five years they followed a schedule in which father had the child every other weekend from Friday through Monday morning when he would take the child to school. The parties then filed competing petitions to modify the decree.

Following a hearing, the district court determined that father’s parent-time should continue at the schedule established in the decree of divorce during the summer months, but during the school year the father’s parent-time the father should have every other weekend from Friday to Sunday evening at 7:00 p.m. with no mid-week visit.

The court stated as its rationale for this reduced school year parent-time that the child had been doing well under the parties’ modified schedule. However, the court did not explain why it took away father’s Sunday overnight visit.

Father appealed, putting forth two basic arguments: 1) the court should have applied the optional minimum parent-time schedule because father had made the required statutory showing; 2) that the court’s findings of fact were not legally sufficient to justify its conclusion.

With respect to his first argument, Father contended that the optional minimum parent-time schedule in Utah Code 30.3.35.1 is mandatory if he satisfied the statutory elements for applicability of the schedule. But the statute stated that if the elements were met, the court may consider application of that section. The word may is discretionary and not mandatory.

But Father argued that applying the statute as merely discretionary would lead to absurd results. The absurdity doctrine applies to reform unambiguous statutory language where “applying the plain language leads to results so overwhelmingly absurd that no rational legislator could have intended them.” Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 46, 357 P.3d 992 (Durrant, C.J., concurring). The absurdity doctrine is drastic medicine that should only be administered in extraordinary circumstances.

Likewise, the absurd consequences cannons did not apply. The absurd consequences canon applies when statutory language is ambiguous and the court adopts the reading of the statute that does not lead to absurd results. But in the instant case, the statutory language was not ambiguous.

Although the Court was not persuaded by Father’s statutory argument, it agreed with him that the district court did not make legally adequate findings of fact. This is because the Court was unable to discern the steps the district court took in rendering its ultimate conclusion. For example, the court gave no reason for taking away Father’s Sunday overnight with the child. It did not find, for example, that Father was unable to take the child to school on Monday mornings, or that the child was excessively tardy. Thus, the Court’s findings did not allow for meaningful judicial review.

The Court remanded for further findings on the child’s best interests.

The Court’s decision is no doubt correct with respect to the plain statutory language. But it seems unfair for courts to apply the optional minimum parent-time statute differently in identical circumstances. If the statutory showing can be made, it is baffling to me why any court would not apply the optional minimum statute. Presumably a court would need to make detailed findings as to its reasons for not considering and applying the statute if the required showing is made. But this is probably an issue for the Legislature to resolve if it sees fit to do so.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.