The first question I ask when a client wants to change their decree is how old it is. It is essential to determine how much time has passed since the decree was entered because I believe there is an inverse relationship between the age of decree and the likelihood that the court will find the change in circumstances. While it isn’t impossible, it is much more challenging to change a decree that was just entered.
What Evidence Is Going to Help a Request to Petition the Court for A Change in Parenting Time or Child Support?
Child support is little more than a math equation. If the variables in the equation have changed enough that the solution to the equation is substantially different from the child support ordered in the decree, the Court would be inclined to enter a new, more appropriate, child support order. The variables are how much gross income each parent is capable of making, how many children are subject to the child support order, and how many nights the children spend with each parent. When any of those change it may be appropriate for the Court to enter a new order governing child support. Utah law requires that the new amount of child support must differ from the old amount of child support by a threshold percentage before the Court will entertain a change in child support.
Regarding custody, a party must start with solid evidence about a change in circumstances. In the last modification trial, I did, my client felt like they were up against tough odds because the custody evaluation had been conducted and recommended the custody change to his ex-wife. She wasn’t willing to negotiate, and we were on a collision course for trial. However, it took a long time to get to trial, and the custody evaluation was two years old by the time it was presented to the judge. If it comes down to the child’s best interest, we’re going to focus on the changes that could have happened between the custody evaluation and the time of trial. However, I felt strongly that the opposing counsel ignored the change in circumstances requirement, which is not uncommon because many modification cases feature competing petitions to modify.
When both parties petition the court to modify, they’re both alleging that there’s been a change in circumstances, making it an uncontested fact and sometimes a stipulated one. In this case, my client asked that the decree stay the same. The opposing side took the change in circumstances prong for granted, which was a blunder. In their petition to modify, they listed what the changes in circumstances were. They made claims that my client was violent, withholding parent time, and showed instability in housing and employment. As part of the discovery process, I had asked her to list each time my client had withheld parent time, been violent, and what made her believe he was unstable. She alleged three instances when she didn’t get her parenting time. They were each years apart from each other. She also discussed episodes where she alleged that he’d been violent, and they were nearly a decade old, having taken place prior to the original decree being entered.
She was trying to paint my client in the most negative light possible by throwing in everything she could think of, including numerous old complaints. This strategy backfired on her because what it showed was that nothing had actually changed. She was still making the same complaints that she had made against him when they were married/divorcing. Since the circumstances remained the same as they were during the time period that resulted in the original decree, she was attempting to modify the decree out of regret, not to address new circumstances that had arisen. Her attorney didn’t do her any favors, and when they were done presenting evidence, I moved the court to dismiss the petition because they had failed to show a change in circumstances. As previously discussed, if the court finds no change in circumstances, it doesn’t have to consider the child’s best interest. The Court granted my motion and the petition to modify was dismissed.
Another appellate case that was just decided presented a scenario somewhat similar but with the new nuance that creates a fascinating precedent. This new case governs what happens when a change in circumstances has occurred, but the original circumstances had more or less been restored before the Petition to Modify made it to a trial. The husband and wife had divorced and agreed to a custody arrangement where the mother had full custody, and they had to inform each other any time they used surrogate care. One day, the father got a call that his child was at school and hadn’t been picked up. He didn’t have any advance notice, so he went to pick up the child, and by the time he got there, the child wasn’t there. He called his ex and tried to figure out what was going on and got no answer.
He was displeased with the situation but didn’t do anything about it at the time. He then found out that his ex-wife was experiencing difficult medical conditions, was in a hospital, and was unable to care for the child, causing their grades to slip. She had many absences from school, and so he brought a request to the court to change custody temporarily. He also brought a petition to modify, which would permanently change it. The court granted the motion, and he took full custody of the child on a temporary basis while the case was pending. It took two years to reach trial, and by the time it did, the court found that the mother’s medical condition had been resolved. The court found that it had been appropriate for the custody to have temporarily changed, but the situation that the parties were in at the time of trial was the same as when the decree was entered. The court found no change in circumstances and had to dismiss the petition.
Even though the child had been with the father for two years, the decree was reinstated, and the child went back to the mother. The father argued that it couldn’t be in the child’s best interest to go back to the mother after two years of full custody with him. The court acknowledged the possible difficulty but reasoned that it could not proceed to a best interest analysis if it was unable to find that there’d been a change in circumstances.
The change in circumstance must be permanent (or at least permanent enough that the changes persist until trial). I have had some consultations with clients who chose not to pursue a petition to modify because the changes that they were prepared to allege were likely to be temporary. They didn’t like the idea of going to trial and have their petition denied on the grounds that the changes that had taken place at the time of the petition had since reversed themselves.
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