Home > divorce modification, family law general, paternity/child custody > Modifying your child custody order (or Don’t Try This at Home): Part I

Modifying your child custody order (or Don’t Try This at Home): Part I

This is how it goes:  You’re getting divorced.  Your spouse is insistent on getting the kids.  You don’t want to go to court, or hire a lawyer, or deal with the fight, so you agree to that, thinking, “I’ll just change it later if it doesn’t work out.”  The two of you sign a stipulated divorce agreement, which is then endorsed by the court and made the Order as a Decree of Divorce.  Spouse gets the kids, you get to pay child support.

Looks like you found the right place, at least. . .

Wait.  You didn’t mean to do that.  Your kids hate your (now) ex; AND/OR your ex never acted as any kind of a caregiver, let alone the primary caregiver, to your kids; AND/ OR a stepparent is now raising your children.  You can just run back to court and change that order, right?

Weeellll, maybe, possibly, it could happen.

In the state of Utah, the courts are loathe to upset a custody arrangement that is “working” for the kids.  By working, that means that the kids are not being abused or neglected, and are generally well-cared for by the custodial parent.  There are good policy reasons for this.  It is NOT in the best interest of anyone, particularly children (who are the court’s primary concern) to continually be jacking around where kids live.  They need stability, some place to call home, a regular schedule, consistency in their schooling, etc.  These are all things that help make for well-developed, healthy citizens.  In fact, all the parties need stability.  If it were easy to modify child custody arrangements, there are those who would use these modifications as a means to continually harass the other party.  It would be a bad scene for the people involved, as well as clogging up the court’s docket.

The standard in Utah for modifying child custody arrangements has been laid out in case law.

[NOTE:  It appropriate here to point out that the law is NOT just what is in the statutes.  The law in Utah, and every other state, is also based on how the courts in the state have interpreted the law.  It’s called case law.  You can look up cases to find out what the case law is on your issue on free sites such as Google Scholar, either by the name of the case, or using keywords, like “child custody modification.”]

I’ll provide a list of some cases that spell out the law in a future post.  Until then. . .


My first “family” photo with my boys, taken days after I signed the stipulation giving custody to my ex.

First: The party seeking custody must prove that there has been a change in the circumstances upon which the previous custody award was based, which substantially and materially affects the custodial parent’s parenting ability or the functioning of the custodial relationship.  from Maughan v. Maughan (Utah Court of Appeals 1989), 770 P.2d 156.  There are a few parts to this first step: 1) change in circumstances that, 2) affects the custodial parent’s ability to parent, 3) in a substantial and material way.  Things that rise to Substantial and Material–custodial parent is in jail; is abusing the children (actually abusing, not just parenting in a way you don’t like); is neglecting the children; is abdicating parenting to a third party on a continual basis; to name but a few.  Things that do NOT constitute a substantial and material change in circumstances–the ex re-marries someone you don’t like; the ex puts the kids in a school you didn’t approve of; the ex moves out of state…etc.

(SCREECH—My ex can move out of state with my kids and it’s NOT a MATERIAL CHANGE IN CIRCUMSTANCES??  WTF!  No.  It’s not.  Cool your heels.  We’ll talk about that one in another post.  Just know that it’s NOT.)

ALSO–the change that the non-custodial parent is citing as being this substantial change in circumstances must NOT be something that would have been known or contemplated at the time the divorce decree was entered.  An example:  Dad knows Mom is going to start working when the divorce is final, because Mom cannot makes ends meet on child support and alimony payments alone, and Mom has said while the divorce was still in process, “I’m going to start working.”  Dad cannot come back a year later and say that because Mom is working, and the kids are not in her care during the day anymore, that her employment constitutes a substantial change in circumstances.

Second: Once that change has been shown, the transfer of custody MUST be in the best interests of the child (emphasis added, also from the Maughan case noted above.)  Best interests of the child determination involve the weighing of several factors.  Initially, the court looks at statutory factors including:  the past conduct and demonstrated moral standards of each of the parties; which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent; the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child; and factors that are listed in the joint custody statute.  They are: (a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
(c) whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
(d) whether both parents participated in raising the child before the divorce;
(e) the geographical proximity of the homes of the parents;
(f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
(h) the past and present ability of the parents to cooperate with each other and make decisions jointly;
(i) any history of, or potential for, child abuse, spouse abuse, or kidnaping; and
(j) any other factors the court finds relevant.

(These factors are literally copied and pasted from the statutes, and are located at Utah Code Annotated 30-3-10 and 30-3-10.2.)

And that’s only the beginning. . .

(To Be Continued)

  1. Cauleen
    March 8, 2011 at 4:34 am

    Thanks for the info! Read this with great interest. 🙂


  2. radrevere
    March 8, 2011 at 8:29 am

    Very well written, thank you for the information. One question I do have is this:
    If the non-custodial parent were to re-marry (thus being in a better position to care for them) does that affect how the court views a custody modification? If so what types of things would they be looking for specifically as grounds for such a change?

    I realize you may not be able to be brief on this one but it’s got me thinking about my own situation. Thanks!


  3. March 8, 2011 at 8:39 am

    The Maughan case actually specifically spoke to that very circumstance:

    “A single parent who has to take what employment they can get certainly has more difficulty as opposed to dual parents. The single parent has to arrange schedules, child care, perform all the household tasks, that are necessary. The Court does not feel that the defendant should be penalized because of this kind of a situation where she does not have the same financial abilities as the petitioner in order to provide a stable environment. The fact that the petitioner remarried making this a dual parent household is not such a substantial change of circumstances that would merit a change of custody or simply any remarriage would have a ping-pong effect on child custody.”

    The Court was quoting the trial court, but state that there was a proper application of legal standards in this particular case. So to be clear–Remarriage ALONE does not constitute a substantial change. Cases are very individual and fact-specific. I suggest reading the whole case to get a feel for the circumstances. You can find it here: http://scholar.google.com/scholar_case?case=13080900986813172098&q=Maughan+Utah+1989&hl=en&as_sdt=2,45.


  4. March 8, 2011 at 8:41 am

    And Revere, that doesn’t fully answer your questions, but I’ll get to what DOES justify a modification in another post.


  5. radrevere
    March 9, 2011 at 6:21 pm

    Thanks Marca, I really appreciate it 😀 If that time comes I’d like to be prepared for it.


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