James R. Balmforth: What is a Change of Circumstances?

A “Change of Circumstances” in Utah Child Custody Cases requires that the court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, 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 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.

Utah law has several hurdles for a parent that wants to change custody, and the burden of proof is on the parent who wants the change. As a custody lawyer, I can tell you, that this means you have to not only tell the court, but provide substantial evidence to the court to get what you want. The first step of these complicated requirements is generally that there must have been a change or circumstances based on facts that did not exist at the time of last custody order. For the most part, the Utah Revised Code is silent about what is or is not a “change of circumstances”, and the answer is found in case law. Sounds simple, right? Nope. Case law varies among the appellate districts. The best you can do is look at the case law, and which trends last over time. The bottom line is that unless a court is directly violating a case precedent that has authority over that court, the court has a LOT of latitude to decide whether or not there has been a change in circumstances.

Military Parents and Change of Circumstances

One exception to this is that The court shall not find past, present, or possible future active military service in the uniformed services to constitute a change in circumstances justifying modification of a prior decree. For more information about Utah active military members being deployed and custody, click this link to read our article about this subject.

So What is a Change of Circumstances?

What about non-military parents? For those parents, what constitutes a change of circumstances is mostly a matter of case law. There are a few issues that have gone to the supreme court of Utah, and those rulings apply to the whole state, but there are other issues that vary from one appellate district to another.

Moving and Change of Circumstances

There is a case where 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. Supreme Court said it was unconscionable for a trial court to treat a parent’s desire to leave the state as a substantial change in circumstances. However, in that case, the mother had not actually left the state, had only expressed an intention to leave. A very different result may occur if the parent has already left. When a parent moves, a child changes schools, loses peers, changes doctors and sometimes loses frequent access to relatives. These are factors a court would consider. Courts are not big fans of parents moving the child far away from the other parent. Put simply – it’s complicated.

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When you need help from an experienced and caring child custody lawyer, please call Ascent Law at (801) 676-5506 for your free consultation. We will help you.