Cases Assigned to the Family Department

Cases Recommended

The Utah Constitution confers upon the Legislature the authority to restrict the jurisdiction of the district court as well as the authority to establish the jurisdiction of any statutory court.(1)

The task force distinguishes between jurisdiction over the subject matter of a case, which attaches to the district court itself, and the assignment of that case, which might be to the general department or the family department of the court. The result of this distinction is that assignment or reassignment of cases between departments is not jurisdictional. Court orders are valid even though a case is inadvertently or purposefully assigned to the "wrong" department. If the need exists, judges of either department may conduct proceedings and enter orders in the cases of the other department without a special order of assignment.

The task force recommends that the case types that follow be assigned to the family department. The task force used two criteria in determining which case types should be assigned to the family department:

The need to present a collaborative effort in providing programs and services to the parties of the case.

The need to adjudicate cases involving common family members in a single forum.

The task force is mindful that some exceptions are necessary to these general rules. For example, the task force debated the possibility of assigning intrafamily crimes to the family department. Such cases meet the criteria established, but countervailing public policy arguments, developed more fully below, led the task force to recommend against including intrafamily crimes in the family department.

Generally, the cases to be assigned to the family department comprise the current jurisdiction of the juvenile court, the domestic jurisdiction of the district court, and some select probate matters.

Aggravated murder, 76-5-202, by a person over the age of 16 was placed within the exclusive jurisdiction of the district court during the Second Special Session of the 1993 Legislature. Under the task force recommendation, prosecution for this offense remains in the general department. Prosecution of a minor under the age of 16 for what would be aggravated murder if committed by an adult is assigned to the family department.

Current law regarding the certification of a minor to stand trial as an adult in the general department and the discretion of the prosecutor to file a criminal information against a minor in the general department remains unchanged.

The district court should assign to the family department the following case types:

  • an action filed under Title 30, Husband and Wife,(2) except that:
    • joint or several liability of a spouse to a third party under Title 30, Chapter 2, Property Rights, shall be assigned to the general department; and
    • either department may make a determination under Section 30-1-4.5 regarding a marriage that is not solemnized;(3)
  • an action filed under Title 42, Chapter 1, Change of Name;
  • an action filed under Sections 62A-3-305, 62A-3-306, 62A-3-307, or 62A-3-309, Adult Protective Services;
  • an action filed under Title 62A, Chapter 5, Services to People with Disabilities;
  • an action filed under Title 62A, Chapter 12, Mental Health, if the commitment is of a minor;
  • an action filed under Title 75, Chapter 5, Protection of Persons Under Disability and Their Property;
  • an action filed under Title 77, Chapter 31, Uniform Reciprocal Enforcement of Support Act;
  • an action filed under Title 78, Chapter 3f, Termination of Parental Rights;
  • an action filed under Title 78, Chapter 30, Adoption;
  • an action filed under Title 78, Chapter 45, Uniform Civil Liability for Support Act;
  • an action filed under Title 78, Chapter 45a, Uniform Act on Paternity;
  • an action filed under Title 78, Chapter 45c, Uniform Child Custody Jurisdiction;
  • an action to modify or enforce an order of custody, visitation, support, property distribution, or alimony of this state or of another state;
  • a petition for a writ of habeas corpus involving the custody of a minor, unless the minor is in the custody of state or local corrections officials after conviction of a crime;
  • a referral or petition for the prosecution of a minor for acts that would be a public offense(4) if committed by an adult other than an offense in Title 41, Motor Vehicles, and ordinances regulating traffic and motor vehicles;
  • a referral or petition for the prosecution of a minor for violation of:
    • - Section 41-1a-1311, unauthorized control over a motor vehicle, trailer, or semitrailer;
    • - Section 41-6-13.5, fleeing an officer;
    • - Section 41-6-44, operating a vehicle while under the influence of alcohol or drugs;
    • - Section 41-6-45, reckless driving; and
    • - a traffic offense that is part of a single criminal episode containing an offense that would be assigned to the family department;
  • a criminal information or indictment alleging contributing to the delinquency of a minor(5) or failure to report child abuse;
  • a referral or petition concerning a minor who is abused, neglected, or dependent;
  • a referral or petition for prosecution of a minor whose status as a minor is an element of the offense, but referral and petition for the following offenses shall require a showing of earnest and persistent efforts to correct the behavior:
    • - concerning a minor who is habitually truant from school; and
    • - concerning a minor who is beyond the control of school authorities or the parent, custodian, or guardian of the minor;
  • a petition involving the interpretation, application, or enforcement of a living will;
  • a petition to perform or restrain the performance of a medical procedure, including but not limited to abortion and the application, withholding, or removal of life sustaining medical treatment;
  • a petition for judicial review of the informal adjudicative proceedings of an administrative agency involving a minor;
  • a petition for judicial consent for enlistment in the armed forces of the United States or of this state or for employment when judicial consent is required by law;
  • a petition to modify a birth certificate; and cases under the Interstate Compact on Juveniles.

The district court should assign all other cases to the general department of the district court. Assignment of cases is not jurisdictional. The objective of the division of case types between the two departments of the district court is to provide to parties and their families a convenient forum for the resolution of domestic and family law issues and the avoidance of conflicting orders in separate but related cases. To this end, the court may assign a case to the family department or to the general department contrary to the general rule as experience and need warrant.


A. Cases Not Recommended

The task force recommends that intrafamily crimes and minor traffic offenses not be prosecuted in the family department.

1. Intrafamily Crimes

The criminal prosecution for crimes of domestic violence belongs in the general department of the district court.(6) Although these types of offenses meet the two criteria considered by the task force for inclusion within the cases assigned to the family department, countervailing arguments require that they be assigned to the general department. Removing these crimes from the general department of the district court, which will adjudicate all other public offenses, may give the impression that crimes against family members are not as serious as crimes against strangers. The objectives of criminal prosecution includes, among others, punishment of the perpetrator of a crime, often without regard to the impact upon other family members. The expertise of the family department judges and staff becomes less applicable in criminal matters. The expertise of the family department is dispositional. The expertise needed in criminal cases is procedural.

The result of this recommendation is the separation of child protection proceedings in the family department from the criminal prosecution for child abuse in the general department. Even though the coordination of these two related case types between separate courts currently creates some difficulty, the task force does not recommend assigning the criminal prosecution to the family department. In this and other examples of the coordination of civil and criminal cases in the family department, judges and prosecutors likely will see the need to separate the proceedings in any event, and thus halt progress of the civil case until the disposition of the criminal charges.(7)

The recommendation for prosecuting family crimes in the general department of the district court extends to violation of a cohabitant abuse act protective order. The entry of the protective order itself is a civil matter and should be in the family department. The violation of the protective order is a class A misdemeanor(8) and should be in the general department.

2. Minor Traffic Offenses

Prior to 1989 the juvenile court shared jurisdiction over traffic offenses with the circuit court and justice court. In 1989 the Legislature divested the juvenile court of jurisdiction over all traffic offenses except automobile homicide, driving under the influence, reckless driving, and fleeing a peace officer, which remained in the exclusive jurisdiction of the juvenile court.(9)

In 1990 the Legislature added unauthorized control of a vehicle, traffic offenses arising out of a single criminal episode containing an offense over which the juvenile court has jurisdiction, and traffic offenses by a juvenile under the age of 16 to the exclusive jurisdiction of the juvenile court.(10)

The task force recommends not altering the current division of traffic cases. To give the family department exclusive jurisdiction over all traffic offenses would carry a tremendous fiscal impact to counties and municipalities from the loss of revenue from the prosecution of such cases in the justice courts, and to the state in the operating costs necessary to assume the additional traffic caseload. To return to concurrent jurisdiction would lead to disparate treatment of youths who by circumstance are cited by a peace officer to juvenile court or to circuit or justice court. Moreover, a minor traffic offense does not involve the same criminal culpability that tends to put a youth at risk of continuing criminal behavior.(11)

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Notes

1.  Utah Constitution, Article VIII, Section 5.

2. This includes divorce, separate maintenance, cohabitant abuse, and all other actions recognized in Title 30.

3. The need to determine the validity on an unsolemnized marriage may arise in some probate proceedings.

4. The exception regarding aggravated murder, 76-5-202, by a person over the age of 16 is again noted. Also, the law regarding certification of a minor to stand trial as an adult and the discretion of the prosecutor to file a criminal information against a minor would remain unchanged.

5.  A significant portion of the current section of the Juvenile Court Act defining contributing to the delinquency of a minor, 78-3a-19, defines as a class B misdemeanor acts that are much more serious offenses under the Criminal Code, Title 76. The task force recommends that the offense of contributing to the delinquency of a minor be redrafted to differentiate the offense from violations of the criminal code.

6. The only exception to this is prosecution of an adult for the Class B misdemeanor, contributing to the delinquency of a minor and failure to report child abuse.

7. Szymanski, Linda, Theresa Homisak, and E. Hunter Hurst, Policy Alternatives and Current Court Practice in the Special Problem Areas of Jurisdiction Over the Family, National Center for Juvenile Justice, 9 (1993)

8. Title 77, Chapter 36 and 76-5-108.

9. Laws of Utah 1989, Chapter 150.

10. Laws of Utah 1990, Chapter 55.

11.  Report of a study requested by Governor Calvin L. Rampton of the Utah Juvenile Justice System conducted by the Youth Development and Delinquency Prevention Administration, Social and Rehabilitation Service, Department of Health, Education, and Welfare. December 16, 1971. Pages 120 to 125.

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Page Last Modified: 5/20/2010
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