Under What Circumstances Can Custody And Visitation Orders Be Changed?

Under most circumstances, in order to change a custody or visitation order, one must show there has been a “substantial change in circumstances” and that it is in the child’s best interests to make the change. What qualifies as a substantial change is up to the court. Nevertheless, some helpful case law lets us know that if the change was foreseeable at the time the decree entered, it is less likely that that change will constitute a “substantial change in circumstances” for purposes of modification. For example, when a parents are divorced, or if custody is awarded, and then one side remarries, it is “foreseeable” that a party might re-marry, or become involved with another partner. So the court is not going to consider the introduction of the new spouse, or “significant other” a substantial and material change of circumstances, unless the new spouse presents a risk of harm to the children. The court contemplates the parties will become romantically involved with others.

However, if there was something significant about that new partner that may cause a risk to the children, THEN the new partner’s involvement could constitute a “material change” for custody/visitation.

Obviously, if someone remarries, or cohabits, then that would be a substantial change in circumstances for the purposes of stopping alimony, but for purposes of changing custody not so much, unless there is something about the other spouse that causes risk to the children. One question that can be asked in determining whether there was a substantial change in circumstances since entry of the decree, would be how foreseeable is the new event.

With respect to child support, there is a statute, it can be found in Utah Code Annotated 78B-12-209, which defines what a substantial change in circumstances may look like for purposes of changing child support. One would be a change in custody; another would be material changes in a relative wealth, or assets of the parties. One side buys a piece of land, and strikes oil, then that is going to affect their child support. However, typically, a material changes of thirty percent (30%) or more of a parent’s income (or a change in an income, even if it is a combined change of the two parties) will constitute a “material change in circumstances” for purposes of modifying child support.

Also, assume that one party’s income increases a little bit, and the other party’s income decreases, but the combined change of the party’s incomes results in a difference of fifteen percent, or more of the payer’s ordered support obligation, that would be required under the Utah child support guidelines.

In other words, if the party’s incomes changed sufficiently that if granted, the new child support amount would be different by at least fifteen percent, then that would constitute a change in circumstances in Utah as well. If the medical needs of a child change significantly, that can also make a difference with respect to child support, but that circumstance is rare.

With respect to custody, some of the most common changes in circumstance that I see include the following kinds of things:

  • The party is not actually following visitation, parent time schedule, and doing something else instead.
  • Abuse or neglect of the children.
  • Substance abuse issues that occur following entry of the decree.
  • Mental health issues may occur following entry of the decree, or that flare up causing a risk to the children.
  • Absence of a parent for an extended period of time, or their failure to communicate with, or exercise visitation for a long time.
  • A move by one party, or the other such that the parties are either significantly closer, or significantly further away from one another.
  • Interference by one party with the other party’s relationship and contact with the children.
  • Alienation by one parent of the children.

That is not an exhaustive list, but those are some of the most typical reasons that people file petitions to modify.

Is The “Substantial Change In Circumstances” Prong Easier To Satisfy In Some Cases?

Where a decree has been “litigated,” meaning that there was actually a trial, the case law in Utah states that the substantial change in circumstance factor has greater importance. In fact, some cases indicate that you may have to demonstrate that there has been a substantial and material change in circumstances before you are even able to show evidence regarding what is in the children’s best interest if the decree entered following a trial.

However, if the decree entered because of a default, or by stipulation (agreement) of the parties, then the court is going to be less strict about the change in circumstances. Now, the court disfavors default custody awards. Also, Courts are going to avoid Ping-Pong custody awards, sending the child back and forth between each side each time a party files a petition to modify. So the change in circumstances is not eliminated altogether, but it is lighter, and easier to prove if the Decree was based on a stipulation or agreement.

What About Prior Agreements For “If/Then” Custody Awards?

Additionally, in 2011, the Utah Court of Appeals determined that you can no longer make “If then” custody awards. For example, if X occurs, then there will be automatic changes in custody. Often, parties will try to agree to something like “Well, once I graduate from college and receive full time employment, then custody will change”, or, “Once a party has demonstrated three years of sobriety, then custody would change back to them.” Those kinds of (if/then custody awards) can no longer happen, and the reason is that the court does not know what else has changed between their times of the entry of the decree and when the occurrence of the specified condition occurs. How does the court know that it is still in the best interest of the child to make that change? Instead, the court wants a fresh “best interest” determination at the time that a change is contemplated, and will not just assume that it is in the best interest of the children to change the circumstances once the condition occurs, even if three years earlier it would have.

How Does Relocation Impact The Potential To Modify Custody Or Visitation?

Relocation is a big reason to modify custody or visitation. The case law regarding how to handle relocation is not well established. The reason is each case is so fact-sensitive that courts have a difficult time agreeing on one-size-fits-all rules to govern the relocation.

There are too many variables in a relocation case, but the court will consider such things as the history of the involvement by the non-custodial parent, both before and after the parties separated, how involved were they, the geographical distance, the travel burdens, emotional impact on the child, attachment of the child to the parents, and also to the environment where they have been integrated before the relocation.

Courts think about the psychological health of those parents, the parenting skills, and psychological adjustment of each parent, the extent of conflict and spousal abuse, or partner abuse historically, and the motives for moving. For example, if one party is simply moving to get away from the other party versus they have a good career opportunity, and that is why they are moving.

The age of the children is also a factor. The degree of involvement of the child’s involvement with the community extended family, grandparents, and so on. The court is going to say that there is going to be more harm with a move with younger children, where there has been high involvement by non-custodial parent, where there are poor coping skills by the custodial parent. If there is going to be a longer geographical distance between the two parties, and if separation of the parties was recent, the court is going to typically find that it is less harmful to a child. If the children are older, if there is low parental conflict, if there is coping skills with the parents, and good resources, whether it be financial, or family support and if it is a shorter distance.

As far as modifying joint custody, whether it be joint legal, or joint physical, if both parties optimistically entered into a decree that gave them joint legal custody, or joint physical and they just cannot get along, and there is a constant conflict between the two parties, that might create a basis to change joint custody to sole custody by one parent. In fact, failure of the parties to be able to exercise joint legal custody appropriately in and of itself might also be a reason to change physical custody.

For more information on Modifying Custody & Visitation, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.

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