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.
Some of the most common reasons (substantial changes) people file petitions to modify custody or parent time (visitation) include:
- 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.
- Failure to properly co-parent with the other parent
- 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.
- Relocation or anticipated relocation. 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.
Are “Substantial Change In Circumstances” 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?
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. The reason is that the court does not know what else has changed between 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. However, if the parties live within 150 miles of one another and have joint physical custody (each parent has at least 111 overnights per year), relocation can be very difficult, due to the Ross v. Ross case.
There are 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 they were
- the geographical distance
- the travel burdens
- emotional impact on the child
- attachment of the child to the parents and to the environment where they have been integrated before the relocation.
Courts think about the psychological health of the parents, parenting skills, the psychological adjustment of each parent, the extent of conflict and spousal 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 as well as the degree 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 in a move with younger children, where there has been high involvement by the non-custodial parent, and 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 are coping skills with the parents, and good resources, whether they be financial or family support, and if it is a shorter distance.
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 regarding relocation, go here.
- What Considerations Govern Relocation Of Children After Divorce?
- What Factors Does The Court Consider In Allowing Relocation?
For more information on Modifying Custody & Visitation, an initial consultation is your next best step.