Modification of Previous Orders

Kelly Peterson | Law Office of Kelly Peterson

Orders that are most commonly modified include:

– Custody, Visitation

– Alimony, child support

Modification of custody and visitation orders

The modification of previous custody orders requires proving two elements:

1. that there was a material change in circumstances relating to custody and

2. that the modification would be in the best interest of the child

If the original custody/visitation determination was made by the court after trial, the court will usually require you to prove the first element before you get to the best interest of the child element (because of the “res judicata” principle).

However, if custody was determined by agreement of the parties without a trial or by default, the court, while still requiring proof of the first element, will likely hear evidence about both elements together.

The same analysis applies to supervision and other child-related orders.

Improving certain circumstances in your life may be enough to loosen restrictions on visitation, but is generally not enough for a change in custody.

For example, where a parent obtained a new spouse and new job, but the child had been integrated in the existing custody situation, a court may not wish to disturb that integration.  A court may decide that the changes to the non-custodial parent’s life do not satisfy the prong of material change in circumstance requirement.

If custody was decided by default, then the first element is going to require very little showing of change in circumstances.

Interference with visitation could be a change of circumstance for purposes of modifying custody or visitation.

Modifications of alimony orders

Obviously remarriage or cohabitation by the recipient spouse would terminate an alimony award.  So might a significant, involuntary decrease in the payer’s income, disability or illness of either party, or significant increase in receiving party’s ability to provide for themselves.

However, if these changes of circumstances are temporary, the court is unlikely to consider them as sufficient change in circumstance.

Generally, once the court has determined that a significant enough change in circumstance has occurred, it will perform the same support analysis that it did the first time to determine spousal support.

Modification of child support orders

In order to modify child support, a significant change not contemplated by the decree is required. The Utah statutory scheme has determined that the following circumstances constitute such a significant material change:

– if child support has not been modified within the previous 3 years, and a party’s income has changed such that there would be at least a 10% difference in the child support amount,

–  changes in custody

– a 30% or greater change in a parent’s income

–  material changes in medical needs of child

– material changes in a parent’s ability to earn

The court is allowed to consider new children that have entered the home- half siblings generally – but that factor may not constitute enough of a change by itself, since it could be contemplated at the time of the divorce.

Interference with visitation by one parent does not constitute change of circumstance for purposes of changing child support, but could be a change of circumstance for purposes of modifying custody or visitation.

Provo Attorney Kelly Peterson has successfully handled Modification of Previous Order cases throughout Utah County.  Having earned the CWLS (child welfare law specialist) designation, Kelly Peterson is uniquely qualified to help you obtain a modification of a previous order.  To schedule a consultation, please call (801) 616-3301 or fill out the consultation request form.

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children