The courts have used an interesting metaphor for how they set the bar on this preliminary question (which must be answered in the affirmative for the court to proceed with the case). They compare it to the tide, which ebbs and flows. The court of appeals has recognized that it isn’t always logical and appropriate to put confidence in the outcome of the previous adjudication. There are circumstances when the court can feel very confident that they got it right and there are other times when those circumstances are not present, and the court can’t be so sure. Despite this, the case law is unequivocal that under no circumstances is a party fully relieved of the burden of showing a change in circumstances.
There are no circumstances where the court will not require a change in circumstances. It doesn’t matter how sloppy or poorly prepared the original divorce decree was. There has to be some level of change. The court can put the burden requirement at a “Particularly Low ebb,” meaning the burden is low, sticking with the tidal metaphor. Many divorce decrees are never adjudicated by the court, meaning the court never took any evidence, gave any advice, or heard from the parties. The parties came with their paperwork ready, there was no fight, and the court essentially rubberstamped their decree. In situations like this, the court is comfortable stretching a little bit to find a change in circumstances. If a party didn’t have any legal advice and were muddling through the process on their own, that may also lower their requirement to show a material and significant change in circumstances.
If the parties attended mediation and had a neutral third party who works in family law helping them, the court would likely have a little more confidence that the decree of divorce is reliable and more likely to have been arrived at thoughtfully and more likely to reflect the child(ren)’s best interest. Without mediation, the court would have a reason to lower the bar for the change in circumstances requirement.
The court can take evidence and consider one or both parties’ emotional and financial state when the decree was entered. The court recognizes that sometimes people are just emotionally beat down by the process of divorce, and they don’t have it in them to fight at the time. They may have made an agreement that is not in the child(ren)’s best interest because they didn’t have the capacity at that point to stand up for the child(ren) and advocate for what would have been better. They may also not have had money, which is very common when people are separating. The emotional status also comes into question when a party feels guilty because the marriage was ending due to their infidelity. To make amends, they might give away full custody to the child when the child(ren) would have been better served with a joint custody arrangement.
On the one hand, many divorces involve two sophisticated parties who engaged attorneys, attended mediation, engaged in a custody evaluation, went to trial, and presented their best evidence to the court (sometimes over multiple days). The trial resulted in a decree of divorce where custody was awarded and a parent-time schedule established. In order to get that decree modified, a very significant and material change in circumstances would have had to occur.
By contrast, two financially challenged individuals could have printed off generic paperwork online, filled it out partially, submitted it to court, and had it approved. The change in circumstances will be less of a hurdle because the court is more likely to view the Petition to Modify as the first real opportunity the court has had to weigh in on the issues of the case.
Whenever possible, a savvy attorney will point out that a case has not been adjudicated. A savvy attorney for the other party, the party wishing for the status quo to remain, can make a counterargument that encourages the Court to keep the burden of showing a material and significant change in circumstances high, even if the decree was not the product of a full and final adjudication. In reality, ours is a system that encourages people to settle out of court. Courts requires parties to attend mediation before being given a trial date. Courts also maintain an elaborate and drawn-out process to get a case to trial. Throughout the pretrial conferences, judges often encourage the parties to take the matter into their own hands and negotiate their outcome themselves so that the judges don’t have to decide. Unsurprisingly, very few of these cases go to trial.
In a recent Utah case, Peeples v. Peeples, the Court of Appeals issued an opinion that held that the question of where to set the bar on the change in circumstances question isn’t a binary question of whether there was an adjudication by the court or not. There are many possible permutations of where this bar could be set based on many factors. Just because an agreement wasn’t adjudicated doesn’t mean that a party didn’t agree to settle because they saw the writing on the wall. Some parties might give in to the other parties’ position appropriately at some point, and they’re going to have a more challenging time coming back after a few years and requesting a reevaluation.
A reasonable family law attorney will help their clients consider issues related to this extra requirement that they likely haven’t considered themselves.
An interesting quasi-exception to the foregoing exists when the parties share joint custody of the child(ren), which assumes that the parties are going to be able to work together in raising the children. If the parties are in constant or have experienced repeated conflict in their coparenting relationship, that alone can be considered a change in circumstances sufficient to reopen the question of custody. The Court can use this legal doctrine to intervene in a situation where the child(ren)’s best interests can’t be served because any schedule or parenting plan that requires the coparents to cooperate with each other is likely to result in harm to the child(ren).
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