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O’Hearon v. Hansen, 2017 UT App 214 (Nov. 24, 2017).

Nov 24, 2017

Following the mother’s death, a stepfather filed a petition requesting custody of three minor children under Utah’s Custody and Visitation of Persons Other Than Parents Act, which allows a non-family member to seek custody if the biological parent “is absent” or “is found by a court to have abused or neglected the child.” Utah Code Ann. § 30-5a-103(2)(g). The district court dismissed based on its conclusion that the father alleged a pattern of visiting the children once a month. Reversing, the court of appeals concluded that the statutory language implied a present-tense inquiry. Where the stepfather alleged sufficient facts for a factfinder to conclude that the biological father was not presently present on the exact date of the filing of the petition, the district court erred in dismissing the petition.