Home > divorce modification, family law general, law general, paternity/child custody > Child Custody Modification (or Intro to Legal Research)-Part II

Child Custody Modification (or Intro to Legal Research)-Part II

As promised, this is the part where I give you a long list of Utah caselaw concerning divorce modifications, and a brief (VERY brief) intro to legal research.  I’d call it Legal Research for Dummies, but it’s not going to be that thorough.  Should you ever decide that you need to do some ACTUAL legal research, if you are in the proximity of a law school, head to their law library.  Most law librarians are so thrilled to help you find information that it’s heartwarming.  And it’s free.  Use them as a resource.

As I mentioned before, the law in any given state isn’t just what’s in the statute.  The statute has been “interpreted” by the courts in the state, and the court opinions that talk to some new proposition or rule, or make a significant legal statement, have been published.  They are just as much the law in the state as the statute is, if not moreso.  Cases are organized in Reporters, and depending on where you live, all the cases from your state that have been published will be located in a Reporter (of some sort).  In Idaho, Wyoming, and Utah, the state’s supreme court cases, and some appellate court cases, are found in the Pacific Reporter.

This is what they look like

These are VOLUMES of books, and they’ve come out in editions– 1st Pacific Reporter, 2nd Pacific Reporter, and 3rd Pacific Reporter.  In each edition there are volumes.  The cases are cited to tell you which edition of the reporter, then what volume, and finally, the page the case starts on.  Citations look like this:  169 P.2d 97 (Utah 1946).  (This is the Pacific Reporter cite–there is also a Utah specific cite in some cases, but you can find any case online by using the Pacific Report citation, so I’ll leave that at that.) This particular citation means that the case is found in the 169th volume of the 2nd edition of the Pacific Reporter, starts on page 97, from the Utah supreme court in 1946.  And this case is the first one I’ll start with in my list of cases, and what each one particularly stands for in relation to divorce modification law in Utah:

Walton v. Coffman, 169 P.2d 97 (Utah 1946):  A court must, in a custody dispute, give the highest priority to the welfare of the children over the desires of either parent.

Hyde v. Hyde, 454 P.2d 884 (Utah 1969):  A child custody proceeding is equitable in nature and must be based primarily and foremost on the welfare and interest of the minor children.

Perkins v. Perkins, 522 P.2d 708 (Utah 1974):  Evidence at a custody modification hearing is limited to those changes which occurred subsequent to the prior decree.  This particular rule is also noted in Gale v. Gale, 258 P.2d 986 (Utah 1953); Baker v. Baker, 224 P.2d 192 (Utah 1950); and Osmus v. Osmus, 198 P.2d 233 (Utah 1948).

Moore v. Moore, 872 P.2d 1054 (Utah Ct. App. 1994):  “On a petition for a modification of a divorce decree, the threshold requirement for relief is a showing of a substantial change of circumstances occurring since the entry of the decree and not contemplated in the decree itself.”

Dana v. Dana, 789 P.2d 726 (Utah Ct.  App. 1990):  If a change in circumstances is “reasonably contemplated at the time of divorce then it is not legally cognizable as a substantial change in circumstances in modification proceedings.”

Hogge v. Hogge, 649 P. 2d 51 (Utah 1982), and Becker v. Becker, 694 P.2d 608 (Utah 1984):  these cases set out the standard for modifying child custody, with the bifurcated test for reopening a custody case:  “1) the party seeking custody must prove that there has been a change in 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; and 2) once a change has been shown, the transfer of custody must be in the best interests of the child.”

Wall v. Wall, 2007 UT App. 61, provides the general standard for divorce modification.  (This is another citation form for the Utah Appellate cases–again, enter the citation as it appears in your search engine and it will pull up the case.)

The State of Utah Supreme Court Building

One last one, with a Ray of Hope for those of us who hope to modify our child custody arrangements in the future:

Maughan v. Maughan, 770 P.2d 156 (Utah 1989):  “[O]n petition for custody modification trial courts should carefully scrutinize the facts behind the original award of custody.  If the initial award was based on a thorough examination by the trial court of the various factors pertaining to the child’s welfare, a rigid application of the change-in-circumstances prong is in order. . .If, on the other hand, the initial custody award is premised on. . .a default decree, or similar exceptional criteria. . .  the inquiry is necessarily less rigid because the trial court has not previously had an opportunity to make a thorough examination of the child’s best interests. . .” (emphasis added.)

There’s a lot of reading to be done prior to thinking about modifying custody.  I do recommend actually doing the reading, and not just taking my word for it.  As with every family law case, the outcome of each is EXTREMELY fact specific–if your facts are similar to those in a particular case, you *might* be a sure thing.  BUT, they never are exactly the same, and it’s anybody’s guess how the court will interpret the law in your case.

This is why you hire a lawyer.  Because do you really want to have to learn all of this by yourself AND have to present it in a rational, non-emotional manner to the court. . .?  Didn’t think so.

  1. No comments yet.
  1. No trackbacks yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: