Defending Against A Petition To Modify Your Decree’s Orders Re: Custody, Parent Time, Or Parenting Plan

 

Hi, I’m Tracy Marda, and I’m here with family law attorney Kelly Peterson to discuss how to defend against a petition to modify when the other side is trying to modify your decree of divorce or your custody decrees, custody orders, parent time orders or parenting plan orders. Today’s discussion is intended for parties who are defending against the other side’s petition to modify the decree. If you’re more interested in modifying the decree yourself, please take a look at Kelly’s other video on that subject. But for today, Kelly,

Could You Give Us A Roadmap Of Our Discussion For When Someone Wants To Defend Against The Other Side’s Attempt To Change The Decree?

First, I’ll talk about the legal standards that have to be met, but the other side has to prove in order to make a permanent change. Next, we’ll discuss the nuts and bolts procedure of the specific steps that should be taken in response to the other side’s petition. Then we’ll talk about negotiations and mediation with the other side and how and when to try to settle. We’ll also talk at some point about temporary orders. Then finally, we’ll talk about how to keep the other side from proving what they need to prove, and how you should prove what you need to prove in order to prevent a modification.

What Does Someone Have To Prove In Utah In Order To Change Custody Visitation Or The Parenting Plan?

They have to generally prove two big things, one, that there has been a significant and material change in circumstances not contemplated by the decree at the time the decree entered. The other thing that they have to prove is that the change that is being requested is in the child’s best interests, so significant and material change of circumstances justifying the decree and best interests in their petition, though they have to allege that these changes would be an improvement for the child and in the child’s best interests. And if they don’t do that, then that might be grounds to dismiss their petitions. They also have to allege that dispute resolution procedures that are applicable have been complied with.

For example, if there is a requirement that the parties mediate first before going back to court, if they haven’t done that, then that might be also a defense to their petition, if custody itself is what is being challenged, then the court looks at a variety of factors in determining custody, domestic violence issues, neglect, abuse, parents demonstrated responsiveness to the child’s needs, their physical, emotional, educational, medical needs. Parents, willingness to function as a parent, their not only their parenting skills, but also their co parenting skills, their ability to communicate with the other parent, their ability to encourage sharing of love and affection, their willingness to allow contact with the other parent, emotional stability of a parent. Whether the parent has relinquished custody or parent time in the past, religious compatibility, financial responsibility, interaction with step parents sometimes can play a role. Who has been the primary caretaker is one of the biggest factors that the court looks at. And so, if you’re the primary caretaker and defending against a petition to modify that’s one of the biggest tools in your tool belt, the benefit of keeping siblings, or you have siblings together, the child’s preferences. There are other factors, but those are the main ones that the court will consider.

What Are The Actual Steps The Other Side Needs To Take To Get That Done, And What Do You Do In Response?

One of the things that you have to look at in your decree is whether or not there is a pre filing mediation requirement. Often the decree says that before you can go back to court or before you can file a petition to modify, you have to attempt mediation. Sometimes the other side skips over that and just hauls off and file their petition to modify. And if they do that, then you can file a motion to dismiss. But let’s suppose that that mediation requirement either there isn’t one, or that’s been satisfied, they’re going to have to draft a petition and summons. If it’s an in state summons, it’ll be 21 days that you’ll have to answer. Out of state folks will have 30 days to answer, and then they have to get that served on you, the petition and the summons. And within that 21- or 30-day timeframe, you’re going to have to file either an answer and a counter petition. If you’re filing a counter petition, you are also alleging that there has been a significant and material change of circumstances.

And if you do that, then sometimes the court will say, well, both sides agree that there’s been a significant and material change of. Circumstances so that element has been satisfied. Other judges might say, well, this significant and material changes of circumstances alleged by both sides are completely different. So, I’m not just going to automatically assume that just because they both filed a petition to change something, they’re each going to have to prove the separate change of circumstances that they alleged. So, you’ll file either an answer, agreeing to the paragraphs of the petition or denying them, and then after that, each side has to disclose initial disclosures their witness list. If we were to go to trial tomorrow. Here’s who my witnesses would be, and here’s my exhibit list, if we were to go to trial tomorrow, here are the exhibits that I think that I would be entering now that can be supplemented over time, but at the very beginning, they have to provide at least what they know about their witnesses and their exhibits during the course of the litigation. Sometimes the other side will try to file a motion for temporary orders, or if you’re filing a counter petition, also you might be filing a motion for temporary orders. There’s also a period of time where the parties will engage in discovery, gathering information, finding out information about the other side that can help bolster their case, and I’ll talk more about discovery in a moment.

The final step, of course, will be trial. Most of the time, trial isn’t necessary, because most cases settle, but if you have to go to trial, the court generally won’t let you go to trial unless you’ve attempted mediation at least once. So, if you have a pre filing mediation requirement, then you have to do that before you even file the petition to modify. But if that pre filing mediation requirement isn’t there, then the court’s going to require you to go to mediation sometime before they’ll schedule a trial.

Can’t I Just Settle Things Without Having To Go To Court?

Absolutely. But the timing of when you mediate is significant. If you mediate early and you’re able to reach an agreement. Lori hallelujah, you’ve just saved yourself a bunch of time, money and aggravation. But sometimes the other side going into mediation has kind of an unreasonable expectation bubble. Their expectations are this big and they’re unreasonable, and you’re just not getting through to them why things should change. And if you go into mediation without a pin to pop that unreasonable expectation bubble, then you may have just wasted a day at mediation paying your attorney and mediator, just for you to say, here’s what I want and here’s why I want it, and the other side just to say, pound sand. So, lots of folks decide you know what I do want to mediate, but I need a pin to pop that unreasonable expectation bubble first. In other words, I need some leverage. There are various ways that they can get leverage. For example, if you do temporary orders and you do well at the temporary orders stage. Now time is on your side, and now you can say, Okay, now let’s go to mediation, because other side, if you are going to tell me to pound sand now, no skin off my nose, I’ll sit back on these temporary orders during the pendency of litigation. There are other ways, like going through the discovery process, that somebody can get additional leverage to convince the other side that maybe they ought to settle more reasonably.

Let’s Just Assume I Have To Move Forward. How Do I Prove My Case?

There are a lot of things that you can do to help organize the evidence and bolster your case. One of the things that I have my clients do is build a chronology. When done right, this document might be 80 pages, single spaced with the date on the left, the event on the right, and they’ll go through all the way back to the beginning of when the problems first started. I’ll have them describe everything that is significant, and this can be a really time consuming, sometimes frustrating assignment, but I’ll have them go through their text messages, their emails, their social media, the other side, social media, their journals, their own memory, and write it down. And I’ll have them quantify things in the chronology.

One mistake that folks make is they use words like rarely or frequently or always or never when they’re describing things. And I’ll want them to quantify it was it once a week, twice a month, three times a year. This chronology becomes one of the most useful tools in the attorney’s tool bag. And because of how time consuming, irritating and tedious it can be, a lot of folks just don’t put in the work. It is absolutely and a legitimate strategy outwork the other side. Side by putting more effort into it than they do. Things that get added to the chronology as exhibits in addition to what the parents and step parents can remember, might include important texts or emails, recordings, videos, statements from other witnesses. But if you don’t have any other data to support the chronology of events, you can rely just on your own memory for this process.

Next, we can do interviews of witnesses. Some of the witnesses who might be interviewed might include grandparents, friends, other family members. These are going to be folks who have witnessed significant things. We often put what they have observed into an affidavit or a declaration. Some folks have even recorded conversations and been able to submit transcripts of those conversations. In Utah, it is currently legal to record a conversation so long as at least one party to the conversation knows it’s being recorded, whether it’s in person or over the phone. Sometimes I’ll do the interview, and sometimes my paralegal will do the interview, or sometimes a parent can just talk to a witness. You can ask the witnesses to send you an email, and you draft the Declaration, or our office drafts the declaration for them to sign, and then all of that information that witnesses provide also get dumped into the chronology you also engage in what’s known as discovery that I mentioned earlier. Discovery includes methods by which attorneys can find out information to help bolster your case. First, what we’re going to talk about as far as discovery goes, is what I call paper discovery. One you might be familiar with is a subpoena. An attorney can subpoena records such as bank records, credit card statements, criminal records, phone records, sometimes even therapy records or medical records or substance abuse records. Generally, you also get up to 10 requests for admissions. Requests for admissions are written in a document you send out to the other side that basically says, Please admit X, Please admit y, Please admit Z, and the other side has to respond to this request for admission within 28 days with a written admission or denial. If they fail to respond within the given time frame, then everything that you ask them to admit becomes admitted as truth for purposes of the case. Some examples might be, you know, Please admit that the child would benefit from larger amounts of time with me or Please admit that your income has significantly increased. There are many questions that can be used, and it’s very specific to your case. I often ask questions that it doesn’t matter whether they answer, admit or deny. It’s helpful either way. For example, please admit that time with me as a parent is really beneficial to this child. Doesn’t matter whether they admit or deny that it’s going to help your case, either way, you also get to send out interrogatories.

Interrogatories are open ended questions that you ask in writing and the other side has to respond within 28 days. And these are open ended questions like, please tell me all my strengths as a parent. Please tell me all your weaknesses as a parent. Please tell me all the reasons why you believe the child should or should not have more parent time. Please give me the names and contact information for all of your employers, or all of your banks and bank accounts, or all of the therapists that have been involved with you and the child. These will be tailored to the specific needs of your case. In Utah, you’ll typically also get about 10 requests for production of documents. These are like 10 subpoenas on the other side. Please provide me all your bank records. Please provide me all of your telephone records from this date to this date. They have to be reasonable, but if they are proportional to the needs of the case, then typically, the court will allow those so you’ll send out these discovery requests, and typically only about 30% of the answers that you get back are going to be helpful. About 70% of the answers that you’re going to give it back are going to be objections, attempts to avoid answering the questions. But you take the 30% you plug that back into your chronology, and you also can file what’s known as a statement of discovery issues. Who’s explaining to the court? Here was my discovery request. Here was their answer. It’s completely insufficient. Or they failed to answer this part of the question, or they failed to provide the document. Please force them to do so. Judge, and the court will look at that motion and make a decision, and very often, you’ll get much more information after you bring it to the attention how they’ve attempted to avoid answering the discovery. So, then you take that information back and you plug that into your chronology.

Next, I want to talk about depositions, although this is often more expensive than paper discovery, sometimes a deposition of the other party or their spouse or someone else is really helpful or even necessary to your case. Depositions are very powerful forms of the. Discovery A deposition is when the other side receives a notice saying that they’re required by law to show up in an attorney’s office at this date and time, the notice will indicate that there will be a court reporter, a stenographer, present that will put them under oath to tell the whole truth, and then the attorney is allowed to ask them questions for sometimes up to four hours, sometimes up to seven hours. And even if they object to a question, they still have to answer. It pretty hard to avoid answering questions for up to four hours or up to seven hours, and even if 70% of their answers are unhelpful or attempts to avoid answering 30% of that kind of a deposition is a lot of significant data, and it’s a powerful way of getting information to help prove the grounds for modification and best interest of the child. Many attorneys make the mistake of using the deposition to do their initial data collection, rather than using it for confrontation during the deposition, you ask questions to elicit not only their behavior that they’ve done in the past, but also very importantly, their beliefs and attitudes. For example, if they send a text message saying you’re such an awful parent, the child has decided that he doesn’t want to go with you. And I support this decision, you sent that text message Correct? Do you think that that was an appropriate text message to send your co parent? Do you think that was helpful to the child? Whatever they say to something like that is going to be helpful to you? Either they’re ignorant and lack insight and are likely to continue, or they know exactly what they’re doing and they’re knowingly engaging in harmful behavior, whatever they give you, it’s often helpful, even if they lie, if they squirm, if they justify it demonstrates their attitudes.

Now imagine doing that kind of thing and asking those kinds of questions for up to four or seven hours. Now you’re in a better position to prove what you need to in court, you’ve built your chronology, you’ve done your paper discovery, and now you’ve deposed the other side, confronting them with all of those things. So, what do you do with the discovery and the deposition? You go through the deposition transcript, you highlight the good stuff, and the good stuff gets dumped back into the chronology when you go to trial, if you have to go to trial, guess which questions you ask only those questions you’ve highlighted. Why? Because if they deviate from their answer, then you can confront them with their deposition transcript and open court in front of the judge, showing that they’re a liar. And because you’re only asking them the questions that you’ve highlighted, your examination of them is powerful. Every question is a zinger and helps demonstrate your case. There’s an old saw that any good trial attorney won’t ask a question that they don’t know the answer to in advance, unless the answer doesn’t matter and helps them either way. Well, how do they know the answer in advance? Because they’ve done the other side’s deposition, and I’ve done this discover discovery. So, if there’s a custody evaluator or a parental fitness evaluator, or even a therapist, you also can give highlighted transcript to the therapist or the evaluator, or to DCFS or to the other third-party professionals that are involved.

The last form of discovery that I want to talk about today is expert discovery. For example, if the child is being treated by a therapist, that therapist can weigh in on the relative bond between the parents, compare that bond with what the child has with the step parents, and discuss any concerns that the child has or damage that’s being done to the parent child relationship, just as an example There are also forensic psychologists that you can hire to do a best interest evaluation, a custody evaluation, a parent time evaluation, or parental fitness evaluation, psychological testing interviews, and that psychologist is specifically hired just to give an opinion to the court they’re not necessarily treating the child they’re evaluating and then reported back to the court about the best interest of the child and the parental strengths and weaknesses of the persons that they’ve evaluated. Generally speaking, a child’s statements to a parent, for example, might be considered hearsay, but there are some ways of getting the child’s statements into court. There are exceptions to the hearsay rule. Evaluators and therapists can often get hearsay in because considering that data is important to their duties. Also say if there’s a recording of the child that can often be admitted. Using a forensic evaluator can be extremely powerful it’s really hard for the other side to overcome that if a treating therapist also testifies about similar things, then that can also be extremely powerful. A word of caution about experts, a lot of times attorneys make the mistake of relying too much on the evaluator. Evaluators are generally therapists. They’re nice people. People, they’re generally not going to spend four or seven hours asking hard hitting, hardball kinds of questions. Evaluator will spend maybe a total of three hours over two interviews, interviewing the parties, and half the questions they ask are going to be softballs. So, when they get a transcript of a hard-hitting deposition. They generally find that very useful, because that’s data for them that they can use to base their evaluation on.

But a lot of times, attorneys simply say, oh, let’s just have the evaluator sort things out. But psychology is a science. It’s a soft science, but it’s a science, which means that it relies, as Sherlock Holmes would say, on data, data, data, and if there’s a lack of data, or if the data has been provided to the evaluator by the other side and it is incomplete and sufficient, or garbage, well, it’s garbage in garbage out. How can you expect a good result from an evaluation if the data that was provided to the evaluator is garbage. So, one of the jobs of you and your attorney is to develop the evidence, your chronology, your paper discovery, the deposition, so you can spoon feed that data to the evaluator. Don’t just rely on the expert alone to do all the data gathering. So those are kind of the main tools available to help prove your case.

What About Temporary Orders? Can The Court Temporarily Change The Decree While We’re Waiting For Trial? And How Do I Keep That From Happening?

Fortunately for folks defending against a petition to modify it is often more difficult to get temporary orders changed, even than a permanent order at a trial. That’s because there’s a rule 106, that says that if it’s custody or parent time that is being changed, the other side has to prove not only that it’s in the child’s best interests, but that there is an immediate and irreparable harm to the child that’s going to happen if the change doesn’t happen on a temporary basis, otherwise, the decree remains in place during the pendency of the litigation. Unless the parties have kind of already made a temporary agreement between themselves, the court can ratify a temporary agreement that the parties have made beforehand. But unless they’ve made that kind of agreement, they’re going to have to show immediate and irreparable harm, and that is a very high burden to meet. But what are the nuts-and-bolts procedures for how to get temporary orders that are different than the decree? First, you have to file a motion, and it has to be accompanied by an affidavit signed by a party. Then you contact the courts clerk and schedule a hearing, and then you have to file a specific notice. Now, lots of places in Utah has what’s known as a court commissioner. These are the more populated areas of Utah, and a court commissioner is not a full judge. They can deal with temporary orders. You still call them your honor. They wear a black robe, and they can make rulings, but they’re kind of like preliminary rulings that can be challenged up to the judge, and if you have a commissioner, typically, you won’t have a hearing where people are put on the stand and examined and cross examined. Instead, you’ll have a kind of a quick and dirty, temporary orders hearing where each attorney shows up with their client, their client stays in their seat, and the attorney says, Your Honor, if called to testify, here’s what my client would say, and then they offer the facts and the testimony of their client, and then the other side gets up and does the same thing, and the commissioner says, look, this is not a full evidentiary hearing, so you might get a different result at trial. This is a quick and dirty hearing that takes, usually an hour or less, but based on what I’ve read and based on what I’ve heard today, hear what the temporary orders will be.

If somebody disagrees with the commissioner, then they have 14 days to file an objection and ask the judge to look at it with fresh eyes. If you’re in an area that doesn’t have a commissioner, then you just go right in front of the judge, and the judge will decide whether or not it’s going to be a proffer hearing, kind of like the one I just described, or if you’re going to have an evidentiary hearing where folks are put on the stand to tell the whole truth and are examined or cross examined, which is generally much more time consuming and expensive, whether It’s the commissioner or the judge, they’ll listen to the evidence, and then they’ll make a decision as to what the temporary orders ought to be, or whether there ought to be no change to the decree.

How Can An Experienced Family Law Attorney Like You Help?

First, I can help hold the other side. To their burden of they have to prove certain things, and if they don’t, then their petition or motion for temporary orders fails. So, it’s knowing what is the most helpful evidence to help prevent the other side from showing a burden. We can help draft the answer, and if there is a counter petition, the answer and counter petition and making sure that all of the right elements are in those documents will help gather, organize and present evidence and figure out what kind of discovery is needed and should be conducted, how to present the case most effectively in court, both at the temporary orders stage and at trial, what settlement negotiations to engage in and when and how and when temporary orders should be addressed and of course at trial.

I’m here with experienced family law attorney Kelly Peterson, who assists clients in defending against a modification to a divorce decree or a custody decree. If this is an issue for you or someone you love, don’t hesitate to contact Kelly Peterson’s office to see how he can help. He can be reached at the contact information listed on this site so.

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