§ 9-20-123 — Rights of relatives

(a) (1) If a relative has reason to believe coupled with facts to substantiate his or her belief that the Department of Human Services is unreasonably interfering with or denying visitation between the relative and an endangered adult or an impaired adult as defined in § 9-20-103(6) and (10) respectively, the relative may file a petition for reasonable visitation with the endangered adult or the impaired adult in a court with jurisdiction over proceedings under this chapter that concern the endangered adult or the impaired adult. (2) A petition for reasonable visitation filed under this section shall be verified and state: (A) Whether the petitioner is a relative as defined under § 9-20-103 ; (B) Whether the department is unreasonably interfering with or denying visitation between the petitioner and the endangered adult or the impaired adult; (C) Whether the department is the custodian of the endangered adult or the impaired adult; and (D) The facts supporting the petitioner's allegation that the department as custodian of the endangered or the impaired adult is unreasonably interfering with or denying visitation between the petitioner and the endangered adult or the impaired adult. (3) (A) A petition for reasonable visitation filed under this section shall be served on all parties to a custody proceeding that is initiated under this chapter and concerns the endangered adult or the impaired adult who is the subject of the petition for reasonable visitation. (B) A relative who files a petition for reasonable visitation under this section is not a party to a custody proceeding described under subdivision (a)(3)(A) of this section. (b) (1) (A) If an endangered adult or an impaired adult objects to visitation with the petitioner, the petitioner shall prove by a preponderance of the evidence that the endangered adult or the impaired adult was unduly influenced by the department or another person. (B) The court shall not find undue influence on the part of the department or another person if the attorney for the endangered adult or the impaired adult confirms that the endangered adult or the impaired adult objects to visitation with the petitioner. (2) If an endangered adult or an impaired adult consents to visitation with the petitioner, does not object to visitation with the petitioner, or is unable to express his or her consent or objection to visitation with the petitioner, the department shall prove one (1) or more of the following conditions by a preponderance of the evidence in order to overcome the presumption that visitation between the petitioner and the endangered adult or the impaired adult is in the best interest of the endangered adult or the impaired adult: (A) The petitioner physically abused, exploited, neglected, sexually abused, or otherwise maltreated the endangered adult, the impaired adult, or another adult; or (B) Visitation between the petitioner and the endangered adult or the impaired adult would be harmful to the mental health or physical well-being of the endangered adult or the impaired adult. (c) (1) An order issued by the court granting or denying a petition for reasonable visitation filed under this section shall include statements of fact and law supporting the court's order. (2) If the court grants the petition for reasonable visitation, then: (A) The court may impose reasonable restrictions on visitation between the petitioner and the endangered adult or the impaired adult; (B) The petitioner shall be responsible for paying costs associated with the visitation, including, but not limited to, transportation and supervision costs; (C) Visitation shall not occur in a manner that negatively impacts the medical or treatment needs of the endangered adult or the impaired adult; (D) Visitation shall occur at the placement location of the endangered adult or the impaired adult; (E) Visitation shall be subject to the rules of the facility in which the endangered adult or the impaired adult is placed; and (F) The court may impose on the department the cost of filing the petition for reasonable visitation and reasonable attorney's fees incurred by the petitioner as a result of the department's opposing the petition if the department: (i) Is the custodian of the endangered adult or the impaired adult; (ii) Unreasonably interfered with or denied visitation between the petitioner and the endangered adult or the impaired adult; and (iii) Opposed visitation between the petitioner and the endangered adult or the impaired adult in bad faith. (3) If the court denies the petition for reasonable visitation, the: (A) Petitioner may file another petition for reasonable visitation no earlier than one (1) year after the date on which the court enters the order denying visitation if there is a material change in circumstances; and (B) Court may impose on the petitioner the costs of opposing the petition, including without limitation the costs for subpoenas, witness fees, and reasonable attorney's fees incurred by the department. (d) The court shall not impose costs on: (1) A person or entity that in good faith interfered with or denied visitation at the direction of the department; or (2) The endangered adult or the impaired adult.

Legislative History

Added by Act 2017, No. 667,§ 2, eff. 8/1/2017