Will Utah Law Allow me to Pursue a Request to Modify a Custody Order?
Sometimes, after parties receive a final Decree of divorce (or parentage), one or perhaps both parties later wish to amend the Decree based on a change in circumstances with the parties or their children. At Daniel W. McKay & Associates, we assist our clients with this type of proceeding regularly.
A party may receive an amendment to a final Decree by filing a “Petition to Modify”. There are differing legal standards that determine whether the Petition will be granted. For example, there is a particular legal standard associated with modifying a custody order, which differs from the legal standard required to modify a parent-time order.
To merely modify a parent-time order (regarding the number of visits or overnights a parent is granted per year, or particulars about the visitation schedule, etc.), a party must allege and show that there is at least “some” change in circumstances. See for e.g. Miller v. Miller, 2020 UT App 171, ¶18 (Utah App. 2020) (internal citations omitted).
But to modify a custody order (i.e., to change one parent’s status from non-custodial to custodial, or to change a sole custody arrangement to joint custody, etc.), the party seeking the custody modification has a higher burden, as they must show that there is a “substantial and material” change in circumstances. Id. at ¶18.
The Utah Supreme Court has stated that in order for a petition to modify to be allowed to proceed, i.e., to allow the petitioning party to have their day in court and attempt to prove that their allegations are true, “the allegations [in the Petition] must demonstrate ‘that admissible evidence will show that the circumstances of the child or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order…’” Id. at ¶ 31 (citing Utah Code Ann. § 30-3-10.4(1)(a)).
However, if the claimed change in circumstances is not related to “[i] the parenting skills or [ii] custodial relationship or [iii] the circumstances on which the custodial arrangement was based,” then a court when asked, has the ability to dismiss the petition to modify custody and prevent it from proceeding further through the litigation process. Id. at ¶35.
If you have questions about a modification to your Utah custody or parent-time order that you are seeking (or that has been filed by another party), but you are uncertain whether the appropriate legal standards to support modification are present, it is always best to consult with an experienced, knowledgeable Utah attorney. Call Daniel W. McKay & Associates, PLLC today to speak to an attorney with such expertise, experience, and skill.
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