James R. Balmforth: Moves and Relocation in Divorce

In situations where court ordered parenting time has already been established, and the residential parent or the school placement parent intends to move, the first issue that must be addressed is notice to the other parent. For information regarding notice of a move.

Once issues of notice have been properly taken care of, the next question becomes – what does this mean for your parenting order? Are changes needed? If so, what are they?

If the parents can agree regarding the appropriate changes to their parenting plan, if any, then the parties can submit appropriate paperwork to the Court to modify their parenting orders. But what if the parties cannot agree? If parties cannot reach an agreement on their own, if they wish, they may request the help of a mediator to reach agreement. In addition, the Local Rules of your court or the terms of your parenting order or shared parenting plan may require you to attempt mediation before filing a motion with the Court.

If the move is imminent, and you believe time is of the essence to make sure that your Child is not permanently removed from the State, you may need to seek an Ex Parte Temporary Restraining Order.

If the non-moving parent is unable to reach agreement with the moving parent regarding moving the Child and/or the revised terms that should be in the parenting order, then the non-moving parent is left with two choices:

Do nothing and hope that the other party will allow you reasonable access to your Child from the new location. If you do this, your court ordered access remains the same as your prior order, although it may now be difficult and expensive to follow it. Or,
File a motion with the Court to change your custody, shared parenting, school placement parent, or parenting time. In addition, you may wish to file a motion to modify child support to accommodate the travel expenses that are now involved in visitation.

Before an Utah court can modify custody, terminate shared parenting, or change the school placement parent, Utah law requires that the Court must first find there has been a change in
circumstances.

Moving or Relocation in Utah Custody, Shared Parenting and Visitation Cases

For purposes of this article, assume that moving parent and the non-moving parent have gone through the stages in the first three articles on this topic, and one or both parents have decided to go to court to seek a change of custody, shared parenting, or the school placement parent in a shared parenting plan. Utah law requires a court find that there has been a change in circumstances before making this modification. In addition, the change cannot be a slight change; it must be a change of substance.

The court must find that:

…a change has occurred in the circumstances of the Child, the Child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the Child. In applying these standards, the Court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the Child and one of the following applies:

(i) The residential parent agrees to a change in the designation of residential parent, or both parents, under a shared parenting decree, agree to a change in the designation of residential parent.

(ii) The Child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.

(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the Child.

In one court case, the appellate court found that a trial court abuses its discretion when it modifies custody based solely upon evidence that the residential parent intends to leave the State of Utah with the Child. Many cases since have found that a move, in and of itself, does not constitute a change of circumstances. However, there are also many cases that have found circumstances attendant to a move which, combined with the move itself, may constitute a change of circumstances.

Free Consultation with Divorce Lawyer in Utah

When you need moving, relocation, divorce or child custody help in Utah, call Ascent Law at (801) 676-5506 for your free consultation. We will help you.