What does 'absent' mean in Utah's third-party custody statute? O'Hearon v. Hansen Explained

In O’Hearon v. Hansen, the Utah Court of Appeals clarified a critical element of Utah’s Custody and Visitation for Persons Other than Parents Act, resolving confusion about when a biological parent qualifies as “absent” for purposes of third-party custody proceedings.

Background and Facts

After a mother died in a car accident, her husband Rick O’Hearon sought custody of her three children under Utah Code § 30-5a-103. O’Hearon alleged he had served as the children’s father figure for eight years while their biological father Edward Hansen had been largely absent, visiting only once monthly. The biological father moved to dismiss, and the district court granted the motion, finding that monthly visits precluded a finding of “absence” under the Act.

Key Legal Issues

The central issue was interpreting the Act’s seventh requirement that the biological parent either “is absent” or “is found by a court to have abused or neglected the child.” Specifically, the court had to determine whether “is absent” requires a backward-looking analysis of past visitation patterns or a present-tense inquiry focused on the parent’s status at petition filing.

Court’s Analysis and Holding

Drawing on the Utah Supreme Court’s recent decision in Scott v. Scott, the court of appeals applied a plain language analysis to the present-tense verb “is.” The court held that “is should mean is and not was or has been,” requiring analysis of the parent’s status as of the petition filing date. The court defined “absent” as “not present for the purpose of parenting the child,” rejecting the district court’s focus on historical visitation frequency.

Practice Implications

This decision provides crucial guidance for practitioners handling third-party custody cases. When alleging a parent “is absent,” focus on the parent’s current circumstances rather than historical patterns. The court emphasized that even a parent who previously visited regularly could be “absent” if not present for parenting purposes at filing. Practitioners should craft allegations addressing the parent’s present ability and willingness to parent, rather than relying solely on past neglect or infrequent contact.