Modify Their Decree To Change Custody Orders, Parenting Time Orders, Or Parenting Plan Orders

 

Hi, I am Tracy Murda and I’m here with family Law attorney Kelly Peterson to discuss how to change or modify your decree of divorce or your custody orders, parenting time orders or parenting plan orders. Today’s discussion is intended for parties who want to modify their decree to change those things. If you’re more interested in preventing others from modifying the decree on defending against the other side’s petition to modify, please take a look at Kelly’s other video on that subject.

But today, today, Kelly, why don’t you give us a roadmap of where we’re headed here in our discussion for when someone wants to change or modify custody or parenting time?

First we’ll talk about the legal standards that have to be met in order to prove or to make a change. Then we’ll talk about the nuts and bolts procedure of the specific steps that have to be done to do that. Then we’ll talk about negotiations and mediation with the other side and how and when to try to settle. Finally, we’ll talk about how to actually prove what you need to prove to be successful.

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

Generally, there are two things you need to prove:

  1. That there has been a substantial and material change of circumstances since the entry of the decree.
  2. That it’s in the child’s best interests to make the change.

There are some other procedural things that you need to prove like that you’ve met the mediation requirement or the settlement requirement, if there is one. You also have to claim in your petition that admissible evidence will show that the change that you’re requesting is going to be an actual improvement for the child.

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
  • A parent’s demonstrated responsiveness to the child’s needs
  • Their physical, emotional, educational, medical needs
  • Parents’ willingness to function as a parent; 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 stepparents sometimes can play a role.
  • Who has been the primary caretaker? Is one of the biggest factors
  • The benefit of keeping siblings or half siblings together
  • The child’s preferences

There’s other factors, but those are the main ones that the court will consider.

What Kinds Of Things Can Qualify As Sufficient Changes In Circumstances?

This isn’t the entire list and every case has its unique elements that may qualify, but there are some typical examples:

  • Interference by one party with the other party’s relationship or contact with the children
  • Parental alienation
  • Not following the visitation schedule or the parent-time schedule, doing something else instead
  • Violating court orders or co-parenting by the other parent
  • Abuse or neglect of the children
  • Substance abuse issues that occur following the entry of the decree
  • Mental health issues that flare up causing a risk to the children
  • If joint custody has become unworkable since entry of the decree, absence of a parent for an extended period of time can qualify
  • Relocation of one party’s moved or is anticipating moving a long distance away or closer together if they already are a long distance away

That’s not the whole list, but those are some of the common ones that I’ve seen.

What Then Are The Actual Steps That You Need To Take To Get That Done?

One thing you need to look at right from the beginning is whether or not there is a pre-filing mediation requirement. In many people’s decrees, there is a provision that says, before you can go to court or before you can file a petition to modify, you have to attempt mediation. If there is such a provision, then you’re going to have to do that before you can file a petition to modify. If you’re able to settle there at mediation, great. But let’s assume that either there’s no pre-filing mediation requirement or you’ve already attempted mediation. At that point, you’ll need to draft and file with the court a petition to modify alleging that things that I’ve talked about, and a summons, and get those two things served on the other side. If they’re in state after they’re served, then they’ll have 21 days to file an answer. If they’re out of state, they’ll have 30 days.

The service has to be done formally, usually via process server, unless they agree to accept service by signing a document saying that, I don’t need to be served by a constable. After service has happened, and the 21 days or the 30 days have elapsed, the other side typically will file either an answer or an answer and a counter-petition. After that, each side needs to provide the other with what’s known as initial disclosures.

Here’s our witness list of the witnesses that we know so far. Here are copies of our anticipated exhibits if we had to go to trial, realizing that we might discover things through the course of the litigation that we’ll have to supplement this later. Sometimes a litigant will file a motion for temporary orders, after those things have been done, which we can talk more about in a bit, trying to get temporary orders changed from what the decree says pending the litigation. There’s also a period of time that the attorneys can conduct discovery to find out information to help bolster their case, and I’ll be talking more about that in a bit.

Then finally, trial. But the court won’t let you go to trial if you haven’t attempted to negotiate, if you haven’t attempted a mediation at least once. If there is no pre-filing mediation requirement and you’ve gone through the temporary order stage, the discovery stage, and you’re ready to go to trial, the court’s still going to have you mediate at least once before you go to trial.

Tell Me More About The Negotiations. Can’t I Just Settle Things Without Having To Go To Court?

Absolutely. 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. 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 the mediator just for you to say, here’s what I want and here’s why I want it and the other side’s just to say, pound the sand.

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 a 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 With My Petition And Litigate The Issues. How Do I Show The Court The Decree Really Should Be Modified? 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’s 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 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. 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 to outwork the other 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 stepparents 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 the 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 timeframe, then everything that you ask them to admit becomes admitted as truth for purposes of the case. Some examples might be, 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 but 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. It 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. 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.

You’ll send out these discovery requests and typically, unfortunately, 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 get back are going to be objections, attempts to avoid answering the question, but you take the 30%, you plug that back into your chronology. You also can file what’s known as a statement of discovery issues which is 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. 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. 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. 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. 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 in open court in front of the judge showing that they’re a liar. 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 they’ve done this discovery. 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, the therapist can weigh in on the relative bond between the parents, compare that bond with what the child has with the stepparents 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 a parental fitness evaluation, psychological testing interviews. 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 reporting 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. They’re generally not going to spend four or seven hours asking hard-hitting, hard-ball 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. 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. 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 insufficient 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? 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.

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 A Trial?

Absolutely, but there are restrictions. Ironically, it is, in some ways, easier to make a change to your decree on a permanent basis than it is on a temporary basis. That’s because there’s a rule, Rule 106 that says, that court may order a temporary modification of custody or parent time to address an immediate or irreparable harm or to ratify changes made by the party. If the parties agreed to something over the last six months, the court can ratify that change. But otherwise, in order to change at least custody or parent time, you often have to show that there is an immediate and irreparable harm, and that can be a pretty high burden.

At trial, all you have to show is that it’s in the child’s best interests and that there’s been a change in circumstances, and that’s a somewhat lower burden. 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 court’s 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. 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 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.

Then they proffer the facts and the testimony on their client, and then the other side gets up and does the same thing, and the commissioner says, Hey, 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 here, 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.

Kelly, How Can An Experienced Family Law Attorney Like You Help?

We help draft the petition and ensure proper service, make sure that all the right elements are in the petition. We help gather, organize, and present the evidence. What kind of discovery should be conducted? And then conducting that. How to present the case in court effectively, what settlement negotiations to engage in and when temporary orders should be pursued. And of course, the trial.

I’m here with experienced family law attorney Kelly Peterson, who assists clients in changing or modifying a divorce decree or 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 could be reached at the contact information listed on this site.

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