HOW TO MODIFY CHILD CUSTODY IN UTAH
It is common knowledge that the only constant in life is change. This applies as much to divorce decrees and orders as anything else in your life. Your divorce decree may have satisfied all the requirements and needs of both parties and the children at the time it was signed by a judge, but there may be changes in circumstances that now make your divorce judgment a hindrance, rather than a tool, to navigate the difficult circumstances of divorced families.
A CUSTODY MODIFICATION LAWYER CAN ASSIST YOU TO SETTLE YOUR ISSUES THROUGH THE ALTERNATIVE DISPUTE RESOLUTION PROCESS
Not all changes or disagreements need to be addressed and resolved in court. In fact, it is usually cheaper and healthier for all parties involved to consider Alternative Dispute Resolution (ADR) processes to solve their current conflicts. ADR refers to other ways of resolving conflict among parties, such as mediation and arbitration. If you and your ex-spouse can resolve your issues in this way, then a petition to modify can be filed with a stipulation to change the divorce decree to the new, agreed upon terms.
If the parties had joint legal or physical custody, their divorce decree will most likely require them to try to resolve their conflict through mediation or arbitration first before they can bring their grievance to court.
However, ADR is not always the answer. If you have been unable to reach a mutually beneficial agreement with your ex-spouse, it may be necessary to involve the courts. To bring your case within the jurisdiction of the court, a “petitioner” must file a “Petition for Modification” with the court and “serve” it on the other party. (Note: a petition to modify custody necessarily also means modifying “child support” and “parent-time” in the “Parenting Plan.”) Then the “respondent” must file an “answer” with the court and serve it on the petitioner within a statutorily determined number of days (usually 21 days). If respondent fails to answer the petition to modify, then petitioner will automatically prevail and may obtain a “default judgment.”
In considering a petition to modify, the court follows a two-part test. The petitioner has the burden of establishing:
1) that a “material and substantial change in circumstance” has occurred since the most recent order, e.g., the divorce decree or a previous modification (the court will generally not look back earlier than that controlling order), and
2) that a change in custody is in the “best interest” of the child.
Let’s explore these further.
HAS THERE BEEN A MATERIAL AND SUBSTANTIAL CHANGE IN CIRCUMSTANCES?
For the court to find that a material and substantial change in circumstances has occurred, petitioner has the burden to present sufficient evidence that these changes have affected the custodial parent’s parenting ability or the functioning of the relationship between the custodial parent and non-custodial parent.
One circumstance that may trigger a petition to modify is the out-of-state relocation of the custodial parent and child. By statute, the parent who is moving must give the non-custodial parent 60 days’ notice of their intent to move. If a court finds that the move is not in the best interest of the child, and the custodial parent moves, the court may award a change in custody. In making this determination, the courts consider various factors, including the reason for the custodial parent’s relocation, the additional costs or difficulty for both parents to exercise parent-time, the financial resources of both parents, etc.
Other examples of material and substantial change in circumstances include a remarriage or the need for a child to change schools.
IS A CUSTODY CHANGE IN THE BEST INTEREST OF THE CHILD
Now, the court will only consider if modification is in the best interest of the child if it first found that there was a material and substantial change in circumstances. The court wants to ensure that a child has stability for its proper development. It also wants to avoid “ping-pong” custody awards and harassment by petitioner. Of course, in practice, evidence you have presented to show the court that a material and substantial change in circumstances has occurred is the very same evidence you need to show that a change in custody is in the child’s best interest.
In considering whether modification of custody is in the best interest of a child, the court takes into account several factors to determine proper “fit,” without reference to gender of the parent, including:
- Which parent has historically been the “primary caregiver;”
- Which parent has the deepest emotional bond with the child;
- The benefit of keeping siblings together;
- The parent’s depth of desire for custody;
- The parent’s ability to provide personal, rather than surrogate care;
- The financial resources of each of the parties;
- Any significant impairment of ability to function as a parent through drug or alcohol abuse;
- The reasons for having relinquished custody in the past;
- Religious compatibility with the child;
- Location of extended family;
- Whether the parent has intentionally exposed the child to harmful material, such as pornography;
- Whether the child is thriving, happy and well adjusted;
- The preference of the child who is of sufficient age and maturity;
- Past conduct, emotional stability, and “moral standards” of each of the parties;
- Which parent will most likely allow the child “frequent and continuing contact” with the non-custodial parent;
- Any history of, or potential for, child or spousal abuse, neglect or kidnapping; etc.
CHILD CUSTODY EVALUATION
In most cases, the court will involve the help of a “child custody evaluator” to make these initial best interest determinations. The parties may hire their own custody evaluator or motion the court to appoint an evaluator. A child custody evaluator must be either a licensed clinical social worker with a master’s degree, a psychologist, psychiatrist, or a licensed marriage and family therapist at the master’s level.
Once hired or appointed, the child custody evaluator will conduct interviews with the parties at the evaluator’s office and/or in the parties’ homes. Depending on the evaluator, they may interview the parents alone, the children alone, and/or the parents and children together to see how they interact.
Once the child custody evaluator has gathered the needed information, the evaluator must prepare a “Settlement Conference Report” within five business days. Then the custody evaluator will notify the court, attorneys, and parties of the need to schedule a settlement conference, where the evaluator can verbally present findings and conclusions and make recommendations in a way that is less adversarial and less damaging to family relationships, and allow the parties the opportunity to participate in fashioning an agreement with the benefit of insights from the evaluator.
If no settlement is reached, the child custody evaluator will prepare a full, written report, and the court will set a date for pre-trial conference and trial.
A CHILD CUSTODY MODIFICATION LAWYER CAN HELP YOU EFFECTIVELY REACH YOUR GOALS
Divorces, child custody, child support, alimony, and all other issues involving family disputes can be highly emotional, and are often exacerbated by the complexities of the legal system. A divorce and family law attorney can help you to reach objective decisions that are truly in the best interest of your child, and to navigate the complex legal system.