When (and How) to Modify Child Custody

There are some parts of a divorce decree that generally cannot be modified, but a child custody order is always modifiable. Why? Because Utah law requires that an order for child custody be “in the best interest of the child,” and what is best for a child may change over time. Therefore, families and courts need the flexibility to modify a child custody order when circumstances warrant it. At the same time, children need stability and routine, so it is important that custody not be changed on a whim, only to be changed back again a short time later.

Utah courts do their best to balance the competing needs for flexibility and stability, as well as respecting the rights of parents to make agreements regarding their children whenever possible.

What Are Reasons to Modify Child Custody?

There are many reasons to modify child custody. An infant who had been breastfeeding exclusively may begin taking a bottle and eating solid food, and be able to spend more time away from its mother. A teenager’s busy schedule may make it more practical to live with the parent who is available to shuttle them to sports, club meetings, and music lessons. The parent who currently has primary residential responsibility may find themselves traveling more for work and leaning on the other parent for care. A parent or child could develop a health issue. One parent could remarry, and the child might not feel comfortable in the household. One parent could get a job transfer out of state, or be incarcerated.

In short, there are as many reasons to modify child custody as there are families. So long as the parents agree to the modification, and the court believes that the modification is in the child’s best interest, the court will sign off on the modification.

However, it’s often the case that one parent wants to modify child custody, and the other doesn’t. Parents who are trying to reach agreements about a proposed custody modification may be able to do so through mediation or some other form of alternative dispute resolution (ADR). Mediation can be a great option because it seeks to help families find “win-win” solutions that work for everyone. However, if parents still remain at an impasse over a change of custody, they may need to file a petition to modify custody with the court that decided the original divorce or custody matter.

How to Modify Child Custody Through the Utah Courts

The parent who wants to modify child custody must file a Petition to Modify Custody with the court. As with any request for a court to take action in a case, the parent filing the petition must serve the petition on the other parent, giving them notice of the filing and an opportunity to respond.

Courts generally prefer for parents to resolve custody disputes without court intervention, when possible. Accordingly, the court will continue to encourage parents to settle their dispute, if at all possible. Parents will have to attend mediation, so if the parties have not attended prior to filing, the court may direct them to try to reach agreement through mediation before proceeding with litigation.

In most custody modification cases, there is a pretrial hearing, and, if the case is still not resolved, a trial. The parents will need to present testimony and evidence in support of their respective positions. The parties to a petition to modify child custody are entitled to take discovery in the pretrial period, including depositions and interrogatories (written questions), from each other in order to gather evidence to present at trial.

How Does a Court Determine Whether a Modification of Child Custody is Appropriate?

Remember when we discussed the court’s need to balance flexibility and stability for children? There is a two-step test for determining whether child custody should be modified. The first step is to determine if there has been a “material and substantial change of circumstances” since the previous child custody order was entered. While there is no definitive list of what is and is not “material and substantial,” such circumstances could include a parent’s serious illness that affects their ability to care for the child; a parent’s incarceration; the presence of a new adult in the household who is abusive to the child; and more.

If the court finds that there has been a change in circumstances that warrants a custody modification, the second step is to determine if the proposed modification is in the best interest of the child. The burden of proving both the changed circumstances and that the modification is in the child’s best interest falls to the parent petitioning for the modification.

Another common situation is one parent’s desire to move outside Utah with the child. Under Utah law, a custodial parent seeking to relocate must give the other parent 60 days’ notice of the proposed move. If the custodial parent moves and the court finds that the move was not in the child’s best interest, the court may award custody to the parent who remained in Utah. In these cases, the court may take into consideration a number of factors in deciding best interests, such as the motivation for the move and how costly and cumbersome it will be for the non-custodial parent to exercise parent-time.

Because modifying child custody and getting permission to relocate depend heavily on the facts of the case and knowledge of the relevant law, it is essential to have the help of experienced Utah child custody attorneys who have successfully handled these cases. To discuss your situation or to learn more about how to modify child custody in Utah, please call us at (801)326-8300 or contact BartonWood online to schedule a consultation.