Can my ex’s new relationship affect our custody arrangement?

If your ex has started a new relationship, you probably want to make sure that it isn’t going to negatively affect your children. If you are concerned about this, you aren’t alone. The new significant other is going to interact with your children often, may be around for a long time, and in some cases, you may even be concerned that this person may be dangerous to your children. If that happens, what can you do?

As with most legal questions, the answer is often: it depends. Depends on what?  Here are a few things you may be concerned about:

• Is my ex neglecting our kids because of this new relationship?
• Will the new partner treat my children well?
• Does the new partner have his/her own children that will take higher priority?
• What if the new partner teaches my kids different religious beliefs?
• What if my kids’ school performance is affected?

In some circumstances, you may have even more serious concerns:

• Is this person dangerous to my children?
• What if this person has a history of abuse?
• What if this person is a convicted sex offender?

Whether your concerns are major, like worries about your children’s physical safety, or more minor, you just want what’s best for your children. So how do you know if there is anything you can do? You may want to speak with an experienced family law attorney, and you will likely need one if you decide to take action, but what follows can give you a general idea of what may happen.

First, before a custody arrangement can be modified, Utah Code § 81-9-208 requires that there be a “substantial and material change in circumstances” since a custody arrangement was ordered. In short, this means that there must have been a major change since the custody arrangement was ordered by a court. In Utah, this usually means since your divorce decree was issued. Only a court can officially decide what type of change is enough, and courts have wide discretion here, but there is some law on this subject to provide guidance.

In Shioji v. Shioji, the Utah Supreme Court stated that a parent’s new relationship can be a substantial and material change if it has a “material and adverse” effect on parenting ability. In that case, it was enough that the children were very uncomfortable with their parent’s new significant other sleeping at the house regularly.

If there is a substantial enough change, there are many factors a court may consider to decide whether the custody arrangement should be changed. Utah Code § 81-9-204 lays some of these out, including:

• The child’s interaction and relationship with step-parents or other individuals who may significantly affect the child(ren)’s best interests
• Evidence of psychological mistreatment (e.g. emotional abuse)
• The parent’s understanding of, responsiveness to, and ability to meet the developmental needs of the child(ren)
  • This includes physical, emotional, educational, and medical needs, along with any special needs
• The parent’s capacity and willingness to function as a parent (including co-parenting skills)
• The parent’s past conduct and moral character
• The parent’s emotional stability
• Whether the parent is unable to function as a parent (usually because of drug or alcohol abuse)
• The parent’s religious compatibility with the child(ren)
• The stated wishes and concerns of the child(ren)
• Any other factor the court finds relevant

While this is not a complete list, these are some of the factors that may be affected by the new relationship. These factors may be affected directly by the new person in your child’s life or because your ex’s behavior has notably changed since beginning the new relationship, and the last factor gives the courts wide range to consider anything it decides is important.

If your concerns are serious, like your children’s physical safety, it’s worth noting that Utah courts have changed custody arrangements because of the possibility of future harm to children from a parent’s new relationship. In Thomas v. Thomas, for example, a custody arrangement was changed because a parent’s new significant had previously been convicted of domestic violence and gun charges. Even though the parent was an otherwise fit parent, the court felt that the danger to the children was too great and modified the custody arrangement.

So can your custody arrangement be modified because of your ex’s new relationship? If you just don’t like the new boyfriend/girlfriend, then probably not. But if you think that your children’s health and well-being (whether physical, emotional, or otherwise) may be negatively affected, arrange a consultation with an experienced Utah family law attorney to find out if there is anything you can do. Give us a call at Daniel W. McKay & Associates, 801-798-8000. What matters most is your kids. We want to help you do what’s best for them.