Other than in small judicial districts, there is no way to predict which judge will be assigned to handle a particular case. The random appointment of judges to cases has the possibility of changing the case’s outcome dramatically. Judges and commissioners can be hell-bent on making sure that the original divorce decree is followed to the letter. I’ve seen a commissioner who made significant threats to a custodial parent because their child had been adamantly refusing to go to the noncustodial parent’s house during time allocated for the noncustodial parent. It was meant to motivate the child with the threat of spending even more time with the parent that they were trying to avoid. On the other hand, I’ve seen other judges throw their hands up and state that they had long ago given up on trying to control the actions obstinate teenagers.
At the end of the day, there is no place in Utah law where the child(ren) gets to choose where they live until they’re 18 or out of high school, whichever comes later. They are expected to obey, and it becomes a matter of how strongly a court will enforce. But, as the child gets older, their relationship with one parent might start to struggle, primarily if the parent cannot support them. For example, the non-custodial parent may object to the child signing up for time-consuming activities that eat into their already-limited parent time. It’s possible that that child then starts to talk to the custodial parent about how much they’re struggling to get along with the other parent as a result. The custodial parent might want to return to court and ask for additional parent-time with the child(ren) to allow the child(ren) to engage in their activities.
My professional opinion is that while that may be the underlying motivation for the noncustodial parent to start a new round of litigation, the parent will have to find a better reason than that to convince the court that they have met their burden of showing that a substantial and material change in circumstances has occurred.
If A Change to Parent-Time Is Considered, What Does That Mean or Does That Also Mean the Child Support Could Also Be Altered at The Same Time or Is That a Separate Petition?
Not every petition to modify child support will modify custody, but every petition to modify custody, if granted, would modify child support. It’s an automatically trailing legal question. Any change in custody will have an attendant change in child support, even if the parties ‘incomes haven’t changed.
What Is the Standard the Court Is Looking for When It Comes to Considering And Granting A Change To Child Custody Or Child Support?
There is a very robust and fascinating body of cases on that question. It has been determined that the court has to weigh the benefits of finality against the ongoing need to address the child(ren)’s best interest. In most types of cases, once a trial has been held and the case has been fully adjudicated, the case is over and will not be reopened except under limited, rare, and extreme circumstances. In domestic cases, the court has also had to recognize that when it comes to orders that govern the child(ren)’s best interests, they are dealing with a fluid process. What serves the child(ren)’s best interest may change throughout their life. To accommodate both public polices, the court maintains a limited amount of jurisdiction to enter new orders in domestic cases as needed. A court must first find that a substantial and material change in circumstances has taken place before engaging in any best interest analysis.
There’s a compelling case that states very specifically that this is not an avenue by which a parent is allowed to try and correct their mistakes. Just because a person may regret a stipulation they agreed to, they’re going to be stuck with it unless they can show that a substantial and material change in circumstances justifies reopening the case. The process of changing a custody order includes weighing all the best interest factors that should have been considered the first time but also includes the requirement that the petitioning party must establish that a significant change has occurred since the entry of the previous order.
The Utah Court of Appeals has reviewed cases where the evidence was very compelling that the children’s best interest would be better served if the governing custody orders were to be changed but that there hadn’t been any change in circumstance (at least not a significant and material one) since the entry of the governing custody order. The best interest evidence was not enough to cancel out the change in circumstance requirement. The burden to show a change in circumstances is significant and heavy. It is the primary reason that getting a good custody order when the matter is before the court the first time is so crucial.
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