How to File for Child Custody in Utah

Every child custody case begins with a petition that is filed with the Court.  For married parents a “Petition for Divorce” will be filed and for unmarried parents a “Petition for Paternity” or a “Petition for Custody, Visitation, and Support” will be filed.  The requirements for each Petition are a bit different, but any time the Court is determining custody the judge will make a decision based on the “best interests” of the children.

Filing Your Petition for Custody in the Right Court

There are a number of requirements that have to be met before a Utah Court can make a decision as to a parent’s custody and visitation rights.  There are various exceptions and other lesser-known rules that may apply to your individual case and your attorney can help you sort through those if they’re applicable, but for most cases where your children have been living in Utah for the past 6 months the following general rules will apply:  

1. If you’re married and filing a Petition for Divorce, you must file your petition in the county courthouse where you or your spouse have resided for the last three months.  
2. If you’re not married and you’re filing a petition to establish paternity over your child, you must file your petition in the county courthouse where the child resides.  

Requirements When Filing for Joint Child Custody

Whenever you file for any type of joint custody (joint legal or joint physical custody) you must file a “parenting plan.”  Failure to file a parenting plan can potentially be devastating. This is so because many custody battles end up in a temporary orders hearing where the court will implement a temporary parent-time schedule.  If you are asking for joint physical custody, and the other parent has the children a majority of the time, and you have not filed a parenting plan, the court cannot technically award you joint physical custody.  This would mean the court would award the other parent with primary physical custody, you would have less time with your children, your child support amount would be higher, and your case for permanent joint custody could be weakened.  

Getting deserved custody and parent-time with your children as fast as possible is paramount for any concerned parent.  Because of this, you must be sure that you start your case out on the right foot.  Making even basic errors can cause serious delay in getting the court to intervene and give you court orders protecting your custodial rights.

The Importance of Custody Mediation in Utah

Mediation provides parents with the unique ability to take complete control of their future.  Having complete control is something you lose once you set foot inside the courtroom and rely on a judge or commissioner to decide what’s best for your future and the future of your children.  In Utah, most disputes over custody will go to mediation at some point during the litigation process.

Selecting the Best Mediator for Family Mediation in Utah

This probably goes without saying, but selecting the right mediator to perform your custody mediation is essential.  There’s a few questions you should be asking:

1. How much experience do you have mediating family law, divorce, or custody cases?  Experience matters and sometimes you have to pay for it. Be willing to pay a little extra for a little more experience. Paying more money up front could save you thousands of dollars.  If you hire an inexperienced mediator, and your case doesn’t settle because of it, you may end up spending thousands in attorney fees.
2. Are you an attorney that has litigated custody, divorce, and family law cases before?  Custody and divorce attorneys that have actually litigated cases have unique insight into what potential problems can arise for parties after an agreement has been reached. A mediator that has this kind of experience can help you avoid such problems down the road. 
3. How much experience do you have drafting up settlement agreements? Mediators that are skilled in drafting up settlement agreements that are detailed and easy to understand are very valuable. If your mediator doesn’t have these skills, you may find yourself hiring an attorney to do it for you.  

Divorce Mediation in Utah

Utah law mandates that every single divorce case goes to mediation before it goes to trial.  The law states, “If, after the filing of an answer to a complaint of divorce, there are any remaining contested issues, the parties shall participate in good faith in at least one session of mediation.”  Good faith means that you give an honest, sincere attempt at mediation. Divorcing couples often attend mediation relatively soon after filing a Petition for Divorce. However, in some cases attending mediation too soon ends up being a waste of money.  If the parties are so far from coming to an agreement that middle ground looks light-years away, the parties will often attend a temporary orders hearing first. At this hearing, the commissioner will likely order that the parties attend mediation within 90 days.  

One thing to keep in mind is that even if mediation fails, or doesn’t result in an agreement, that doesn’t mean it was worthless.  Mediation can be a great way for couples to see what the other party cares most about and to see where the big fights are going to be as the case continues.  Sometimes the parties may even settle some parts of a case and leave the remaining issues for trial. For example, perhaps Husband and Wife agree on all the property and financial issues: they agree to split retirement, to sell the house and split the equity, divide furniture, etc. However, they cannot agree on custody and parent-time for their children.  In this case, they may have their attorneys draft up an agreement on the financial issues but save the custody issues for a trial.

Co-Parenting Mediation Program in Utah

When people refer to the co-parenting mediation program in Utah they’re typically referring to the process outlined in 30-3-38 of the Utah Code.  This set of laws provides that when a parent files an action with the court alleging that their parent-time rights have been violated they shall be referred to a mediator.  The assigned mediator will meet with the parents and attempt to facilitate an agreement between the parents. In some cases the parents will be referred to other organizations (i.e. Department of Human Services) who can work with the parties to help solve some of the underlying problems.  If the parties are unable to reach an agreement, the case will be sent to the judge or commissioner who will issue a decision. 

Mediation provides an opportunity for parents to agree on terms that are tailored to their lives and their children’s lives.  Even when the parties are unable to come to an agreement in mediation, mediation can still be a valuable tool for gathering information and case planning.

Filing for Divorce in Utah: 6 Things to Know

There are some unique requirements when filing for Divorce in Utah.  While this list isn’t meant to be exhaustive in any way, it will give you a few things to think about as you prepare to file your divorce.

(1) Know the Three Month Residency Rule

According to Utah law, the Petitioner (the one filing the divorce) or the Respondent (the spouse that must respond to the filing for divorce) must be residents of the county where the divorce is filed for at least three months prior to the actual filing.  So, if you live in Ogden and you want to file a divorce in the Weber County court, you (or your soon-to-be-ex-spouse) must have lived in Weber County for at least three months before you file your divorce.  While this doesn’t initially seem like a big deal, it certainly can be.  We have litigated divorces before where getting the case dismissed because the three month residency rule wasn’t met turned out to be hugely advantageous to our client.

(2) Consider an Acceptance of Service

Having someone show up at your door–or even your place of work–and throw divorce papers at you saying, “You’ve been served,” is a pretty decent way to start a war.  If that’s what you’re going for then keep at it (and we understand, sometimes war is necessary), but if you’re wanting to get through a divorce as amicably as possible then try an acceptance of service.    An acceptance of service is a document that you or your attorney delivers with the divorce papers that essentially says, “I acknowledge that I have received a copy of the Petition for Divorce and that I have a limited time in which to respond to them.”

(3) Take the Divorce Orientation and Education Classes Early

If you have minor children between you and the spouse you’re divorcing then you will need to take the divorce orientation and education courses.  It used to be that you could only take them in person, but the court has now provided options for people to take these courses online.  There is a fee for both of these classes.  The Divorce Education course is $35 and the Divorce Orientation course is $30, but you can get a discount if you attend the course soon after the divorce was filed.  More importantly, however, is the fact that some courts will not allow you to pursue certain remedies or won’t schedule certain hearings unless you’ve completed these courses.

(4) Don’t be Too Nice in Your Initial Petition for Divorce

The first document you file with the court will be your Petition for Divorce.  This document will set forth everything you’re asking for: legal and physical custody, child support, alimony, your favorite dishes, that kitchen table your parents gave you, and money out of the joint savings account.  Occasionally we have clients that don’t want to come across too harsh in this initial filing, so they ask us to draft up a document that they hope won’t offend their spouse.  We remind our clients of two main things:

1. Anything you ask for in your initial papers can be bargained away in negotiation.  So, if as you move through the divorce process you find your spouse being surprisingly agreeable and fair, you can return the favor and discard some of those terms that were in your initial filing.
2. Chances are, your spouse is going to file a harsh counter-petition for divorce.  It can be a disconcerting thing to file what you feel is a fair Petition for Divorce only to have your spouse turn around and file a counter-petition that seems to be anything but fair, but that’s probably what’s going to happen.

(5) Don’t Forget a Parenting Plan

If you’re asking for any kind of joint custody (joint legal or joint physical) then you must file a parenting plan.  A parenting plan is exactly what it sounds like: a plan for parenting children.  These plans may include provisions about how both parties should maintain a stable, loving, and consistent relationship with the child; how healthcare and daycare should be managed; how certain decisions should be made regarding the child’s various activities, etc.  Forgetting to include a parenting plan can prohibit you from getting what you’re asking for in the early stages of your divorce, like in a temporary orders hearing.

(6) File a Military Service Affidavit

Whenever you file for divorce you must file a “military service affidavit,” or proper documentation showing that the spouse you’re divorcing isn’t away on military duties and has the ability to answer the divorce.  If you do have a spouse serving in the military, make sure you time your filing appropriately.  Having a spouse get deployed in the middle of a custody battle can complicate things, as you can imagine.

8 Things to Know About the Divorce Process in Utah

It’s impossible to cover everything you need to know about your upcoming divorce in a single post, but here are a few key things to think about as you move forward, a few frequently asked questions we see from our clients, and a few pitfalls that can cause you real problems.  

(1) How Long Does It Take for a Divorce to Be Finalized in Utah?

In Utah, there’s a 30-day mandatory waiting period from the time your Petition for Divorce is filed until the judge will sign your final Decree of Divorce.  However, most divorces don’t resolve this quickly. Uncontested divorces (where divorcing couples agree on all terms at the outset of the divorce) conclude between about 30 days and three months, but contested divorces can last more than a year.  Click here for a more detailed explanation of an expected timeline.  

(2) Should I Use Do-It-Yourself Documents (i.e. OCAP), Or Will They Cause Me Problems?

Occasionally we see clients come in with documents they found somewhere online, and in the worst case scenarios they come in with documents that were meant for another state.  Utah offers do-it-yourself documents for a small fee through the Online Court Assistance Program (OCAP). OCAP can be great for the most simple of divorces (i.e. a couple that has been married for 5 months and there’s no children, property, or anything else to dispute), but for anything even slightly complicated OCAP documents tend to cause problems.  This is because these documents treat all divorces the exact same way and therefore there’s very little room to tailor provisions specifically for you and your children. Often these documents contain provisions that don’t make sense for your specific case. Fixing these problems can ultimately cost you more money than if you just hired an attorney to handle it in the first place.  Most of us family law attorneys make more money off of fixing bad divorces than doing them right the first time around.

(3) Make Sure You Verify Assets

Don’t simply rely on the amounts your soon-to-be-ex says are in financial accounts.  We divorce attorneys have all seen it: one spouse says there’s X amount of money in a retirement account, a business account, or some other kind of financial account, and upon further investigation we find their claim was radically underestimated.  Get real, official documents verifying accounts so there’s no question as to the amounts of money in question.

(4) Don’t Agree to Large Sums of Child Support or Alimony Just to Get the Divorce Done

Obligating yourself to paying large amounts of child support or alimony can be a disaster.  The Court doesn’t take one party’s failure to meet their obligations lightly. If the Decree of Divorce tells you to pay X amount in child support or alimony, and you fail to do so because you got remarried, have a new job that doesn’t pay as much, have a child now with your new spouse, and your living expenses have drastically increased, the court may not be sympathetic to your situation. If you fail to pay, the court can then hold you in contempt and levy even more financial consequences against you.  

(5) When Negotiating, Know Your Bottom Line But Be Flexible

Talk with your attorney about some realistic goals.  Your divorce attorney should discuss possible scenarios with you honestly so you can properly assess your position.  Let your attorney know you want them to be frank with you about a realistic worst case scenario and a realistic best case scenario should your case go to trial.  This can help you set a bottom line: a point where you say, “This is as low as I’m willing to go. If I can’t settle for this, I’m going to take this case all the way to trial.”  Knowing your bottom line is important because when you’re in the midst of a stressful 8-hour mediation, or when you’re feeling particularly discouraged, or a friend or family member is trying to tell you what to do, you’ll already be guided by an informed decision that was previously made. Lastly, once you set that bottom line be willing to adjust it upward or downard a bit depending on how your case plays out (i.e. what evidence you can gather that supports your position, what evidence your ex can gather that supports their position).  The bottom line should be a guide, not a hard-line to follow at all costs.

(6) Adjust Holidays to your Liking

Many families have specific family traditions around holidays.  The holiday schedule set forth by the Utah Code might not account for your traditions.  You are not obligated to follow the Utah Holiday Schedule. Instead, you and your ex can come to an agreement on how certain holidays and special events should be split.  For example, while the Utah Code states that the parents shall alternate parent-time on children’s birthdays, it doesn’t specifically allow for a parent to have the children on the parent’s birthday–you can add this into your holiday schedule.  If one parent has a big celebration on Christmas Eve and the other parent has a big celebration on Christmas day, you can specifically account for that in your final court order.

(7) Be Specific About What Expenses Should be Split

In a joint physical custody situation, both parents are obligated to pay for extracurricular activities and school expenses.  However, in practice this isn’t so simple and is often a major issue of contention among divorced couples. Finances get tighter after a divorce and a parent might look to save some money in various areas.  So, one parent may want a child to compete on a competitive baseball team instead of a recreation league and the other parent might not be willing contribute. One parent might complain that they cannot afford that dance class anymore.  Sometimes school fees can get expensive: paying for that college level course at the high school, field trip fees, competition fees, uniforms, that trip abroad with their German Language group. The best practice is to be explicit in your Decree as to what fees are to be shared among parents.  

(8) Don’t Leave the Marital Home Too Soon

Leaving the marital home when you have minor children can damage your claim for custody.  Don’t assume that just because you’ve been an involved parent up until this point in time that you’re going to be able to prove that to a court.  Living at the marital home, being a part of the bedtime routine, cooking meals for the kids, helping them with their daily homework, etc. goes a long way to showing your regular involvement, which ultimately helps your claim for custody.  Also, don’t assume that just because you and your spouse came to an agreement on a parent-time schedule that they’re going to follow through with it after you leave. They may talk to an attorney that advises them to act differently. However, it’s not always possible or safe to remain at the marital home–if that’s your situation make sure to talk to an attorney and come up with a game plan.   

Conclusion

If you’re considering the divorce process, or if you’re already in the early stages, we hope these bits of advice will help you avoid some pitfalls and put you in a better strategic position.

How Long Does It Take for a Divorce to Be Finalized in Utah?

Of course every divorce case has its own facts and therefore there’s no one-size-fits-all time frame, but here are three things you should keep in mind when considering the timeline of your own divorce case.  

Mandatory Waiting Period

The State of Utah used to mandate a 90-day waiting period, beginning from the date the petition of divorce was filed, before a couple could actually get their signed documents back from a judge.  Recently, that law was changed to a 30-day waiting period.

Uncontested Divorces

Most divorces don’t resolve at the 30-day mark described above.  “Uncontested” divorces, or divorces where spouses agree on all of the final terms they wish to be included in their divorce, can resolve within 30 days, but more typically are finalized between 60-90 days.  These types of divorces are resolved much more quickly because there’s no need for hearings, no need for litigation, and fewer documents need to be filed.  One common scenario we run into quite frequently is divorcing couples who think they’ve resolved all of their issues until we start drafting the final paperwork.  Sometimes things come up they haven’t considered yet, like division of retirement accounts, what we call the “right of first refusal” in regards to parent-time, who gets the kids on various holidays, what summer parent-time looks like, etc.  Failure to consider all the issues at play in a divorce can delay a final settlement.

Contested Divorces

“Contested” divorces, or divorces where spouses disagree on what the final terms of the divorce should be, can carry on for a long time.  We’ve litigated divorce cases for longer than 2 years! The length of time from beginning to end depends on several things, including (1) how many issues are disputed between the spouses; (2) how many hearings need to be scheduled with the court; (3) whether you need to hire experts, like custody evaluators or forensic accountants; (4) whether spouses have the money to fund the divorce (paying attorney fees, hiring experts, etc.) or whether there are delays while spouses come up with more money; (5) whether the case settles in mediation; among other things.  On average, it’s probably fair to say that most contested divorces resolve between about 8 – 12 months. However, if a case goes to trial, which is a very small percentage of cases, it can certainly last longer than that.

What You Need to Know About Finding a Divorce Attorney in Utah

Getting started with the divorce process can be overwhelming, especially if you’ve never had to hire an attorney before.  As you set out to hire an attorney, try to keep things simple. To start off, get used to the idea that you’re going to have to expose some of your personal life to the court, but also know that these documents are kept private and not accessible to the public.  Next, go attorney shopping. Recognize that while price matters, you want the best bang for your buck. You want someone that you feel comfortable with, that will zealously advocate for you, that understands the law and how the judges in your area tend to make decisions, and someone that will be fair in their billing.  

What Qualifies as Grounds for Divorce in Utah?

In every Utah divorce, a divorcing couple must cite the “grounds” for their divorce–or the reason for their divorce.  Most divorcing couples cite “irreconcilable differences” as the reason for their split. This means they had significant disagreements between them that could not be resolved, such as differences in religion, character, or personality traits. It could also mean that one of the spouses made certain decisions that resulted in an irretrievable breakdown of the marriage.  However, an individual is not limited to divorce on these grounds, they can also cite to any reason listed in the Utah Code, such as adultery, habitual drunkenness, incurable insanity, desertion, or if one spouse was convicted of a felony.  

Utah Divorce Attorney Fees

One of the first questions new clients typically have is, “What’s your retainer fee?”  Retainer fees, on average, range anywhere from $1,000 – $5,000 depending on the complexity of your case.  While the retainer fee question is a valid one, it’s not the most important. Prospective clients should look at the hourly rate of the attorney and read the fee agreement carefully.  Compare hourly rates of attorneys in your area. On average, most family law attorneys bill at $200 – $300 per hour. Ask your attorney if they bill a minimum amount of time every time they take action on your case.  If your attorney bills you for a minimum of 10 minutes every time they send an email or answer a brief phone call, you may see your retainer payment dwindle at a rapid rate.

Ask your attorney how long you can expect your retainer payment to last, and when it runs out whether you will be expected to refund the retainer in the same amount.  If you can afford your attorney’s initial payment, that doesn’t necessarily mean you can afford to keep your attorney throughout your legal battle. It’s a huge legal and financial setback to have your attorney withdraw in the middle of your case because you can’t afford to keep them on. At Red Law, we price our retainer fees at a reasonable and affordable rate and then work out tailored payment plans with each of our clients to ensure we stick by your side for the long haul.  

Finding Utah Divorce Attorneys for Fathers (and Something to Consider for Mothers)

Utah is in the process of overcoming the stigma that every mother will automatically get custody of their children.  In 2015 Utah legislature created a new law that provided every parent with the option of being awarded joint physical custody if they can show they are an involved and able parent.  With this new law, we have seen more fathers throughout the state being awarded more parent-time with their children, an opportunity to be more involved in their lives, and more rights to make decisions for their kids.  However, fathers and mothers must realize that this law isn’t implemented automatically. Fathers must have an attorney that can prove their case for them and convince the court that they have been an involved parent, their work schedule and lifestyle allows them to continue to be involved, and their increased involvement would be in the best interests of the children.  Hiring an attorney that understands the intricacies of these laws and has experience preparing cases that are convincing to the court is paramount to protecting your rights.

Consultation for Divorce Attorney in Utah

Red Law doesn’t offer free consultations because we do consultations differently than most attorneys.  What we seek to provide during that consultation is not a rote and general presentation of what typically happens in a family law case.  Instead, we look at the individual facts of your case, we come up with a game plan, we’re honest with you, and we explain specifically how we could help you. Our goal is to provide you with valuable advice so that whether or not you decide to retain us you feel your money was well spent.  We’re confident in our ability to assess your case and come up with a preliminary game plan right then and there.  While we don’t offer free consultations, we do offer them at a discounted rate.  Our consultation fee for family law matters is $30 per half hour.   

How to Calculate Child Support in a Utah Divorce?

(Video above: Utah attorney, Trevor Osborn, explains how to calculate the amount of child support you be paying or receiving in your Utah divorce or Utah custody case). 

The easiest way to calculate child support is to use the child support calculator provided on the Office of Recovery Services’ (ORS) website, HERE.  If you’re unsure of how to go about using this calculator, this article will help you.

In Utah, there’s a number of factors the court will consider when determining how much child support you will have to pay, or how much child support you will receive in your divorce or custody battle.  The court will consider (1) the income of both of the parties; (2) the number of children born to both of the parents; (3) the type of physical custody awarded; (4) whether one of the parties has another child support or alimony obligation in a different case; (5) whether there are other children currently living with one of the parents whom that parent is obligated to support.  This article will discuss each of these factors in more detail below.

The Parties’ Income.

We consider the income of both of the parties when calculating child support:  the party paying child support and the party receiving child support.

Unemployed Parent.  Occasionally, one of the parents is unemployed and therefore does not have any income.  When this occurs, the court can impute income–this means that the court will look at the work history and employable skills of that unemployed parent to determine the amount of income the parent is capable of earning.  For example, if the parent was previously employed making $60,000 per year, the court may determine that the parent presently has the ability to make $60,000 per year, and then court will use this hypothetical figure to calculate the amount of child support owed/received.

Unemployed with No Previous Work History.  If the parent doesn’t have any previous work history or any employable skills, the court will likely determine that the parent has the ability to make at least minimum wage.

Inconsistent Income.  Sometimes a parent is employed in a position where their income is dependent upon commissions, where their work is seasonal, or where for any other reason their income fluctuates month to month or year to year.  In this case, the court may look at the parent’s salary over  the past several years to determine an average salary that the parent will be held to for the purposes of calculating child support.

Second Job or Overtime Pay.  Generally, child support is calculated based on a parent’s 40 hour work week.  Overtime pay and income from a second job can be considered when calculating child support, but generally is not.

Number of children that the parties have together.

The number of children born to both of the parents has one of the most significant impacts on the amount of child support that will be paid/received.  Of course, if there are more children born to the parents, the amount of child support paid/received will be higher.

Type of physical custody awarded.

The type of physical custody awarded to the parents is another factor will significantly impact the amount of child support paid/received.

Joint Physical Custody.  Joint physical custody is determined by the number of overnights each year that the children spend with each of the parents.  The amount of child support will fluctuate depending on the number of overnights the child spends with each of the parents.  For example, in a joint custody situation, if a child spends 111 overnights with one parent and 254 overnights with the other parent the child support obligation will be much higher than if the child spends 183 overnights with one parent and 182 overnights with the other parent.

Primary Physical Custody.  If one party is awarded primary physical custody then we no longer consider the amount of overnights the children spend with each of the parents and we calculate child support based only on the fact that primary physical custody has been awarded.

Previous Child Support or Alimony Obligation in a Different Case.

The court will consider the amount of child support or alimony (spousal support) that one of the parents has to pay in another, different case when calculating the child support owed/received in your case.

Obligation to Children in the Present Home.

If one of parents has been remarried and there are other children of that marriage living in that parent’s home, the court will consider the financial obligation that parent owes to those children when calculating child support.

You can find more information in our Utah family law library.  Or contact us to schedule a free consultation.

How To Modify Custody In Utah

If you have an existing court order that sets forth the terms of your custody arrangement, and you want to change that custody arrangement, you can do so by filing what is called a “Petition to Modify” with the proper court.

Under current Utah family law, in order for the court to grant you the change of custody that you are seeking, you must present enough evidence that the court can make two separate and distinct findings:  (1) that a material and substantial change of circumstances has occurred in your case, and (2) that a change in custody is in the best interest of the child(ren).

Let’s address each of these two categories separately.

1. A Material and Substantial Change of Circumstances

For the court to find that a material and substantial change of circumstances has occurred, you must present sufficient evidence that not only has there been changes in the child’s life or in the parent’s life, but that the changes that have occurred have actually had a significant impact on the ability of the parent’s to parent their children and/or on the custodial relationship.

Here are a few examples of what might amount to a material and substantial change of circumstances:

• A change in the child’s living environment.  This could occur if one of the parents were to get remarried.  Such an event can present significant difficulties for a child in their day-to-day life as the child attempts to navigate a new relationship with a third parental figure and step siblings.

• One parent getting a new job or moving to a new location that would require the child to go to a new school, find new friends, join new sport teams, etc.

• The child is doing poorly in school or having recurring health problems.  The court may be even further persuaded to find a material and substantial change of circumstances in this case if the parent seeking the change of custody can demonstrated their ability to address the child’s educational struggles or health problems in a more effective way than the other parent.

• Changes in religion.  If a child was raised in one denomination, and one parent is no longer actively involved in that religion, it could be argued that this situation affects the child’s stability and continuity in life.

• There has already effectively been a change in custody and/or parent time.  If five years ago the court ordered that dad would only have one weekday visit each week, but over the last two years, and upon mutual agreement with the mother, dad has actually been having several weekday visits each week and the child has often been spending the night at dad’s house, dad can go back to the court and in essence say: “I would like the this Court to change our previous custody arrangement to reflect what we’ve been doing the past two years.  The changes we’ve made to the custody arrangement have been working and the child is happy.”

• The child desires a change.  By Utah statute, a child 14 years old or older can articulate their preferred custodial arrangement to the court or a court assigned Guardian ad Litem.  A child’s stated preference can have a significant influence on whether or not the court finds that a material and substantial change of circumstances has occurred.

There is no guarantee that any of the examples will result in the court altering an existing custody ruling.  In our experience, it is usually the accumulative effect of multiple factors that move a court to allow you to pass this first hurdle of “a material and substantial change of circumstances.”  That is why it is important to include as many factors as possible in your filing.

Keep in mind, if you don’t pass over this first hurdle, the court will not move on to the second hurdle addressing whether a change in custody is in the child’s best interest.

2. A Change in Custody is in the Child’s Best Interest

Often times, the evidence you’ve presented to show the court that a material and substantial change of circumstances has occurred is the very same evidence you need to show that a change in custody is in the child’s best interest.  Sometimes the court will find that the initial evidence you have presented is enough to for you to clear both hurdles and be granted that change in custody you desire.  However, other factors the court may take into consideration are:

• The Child’s level of happiness in their current environment.
• Whether the child is thriving and well adjusted.
• The depth and quality of the relationship between the parents and the children.
• The parenting abilities of the parents since the original custody arrangement was entered into.
• Whether the child has been exposed to domestic violence or other harmful situations.
• Whether the parents have been able to facilitate a good relationship between the child and the other parent.

The Court is most interested in placing the child in a custodial arrangement that is most likely to be best for the child’s emotional, spiritual, psychological, and physical health.

Conclusion

If you present enough evidence for the court to find (1) a material and substantial change of circumstances has occurred, and (2) a change in custody is in the child’s best interest, the court will change its previous order of custody and issue a new order reflecting a new custodial arrangement.

Motion For Temporary Orders in Utah Divorce

(Video above:  Ogden attorney, Trevor Osborn, discusses what a Motion For Temporary Orders is and how it may apply to your Utah divorce or custody battle.)

It can take anywhere from 6 months to more than a year before a divorce or custody dispute in Utah is fully resolved. This extended timeline can create a lot of hardships for families.  For example, most parents don’t want to wait until their case is completely resolved before they can have parent time with their children, or before they can have some degree of custody of their children, or before they can access some of their assets that are now tied up due to the pending divorce or custody proceeding.  A Motion for Temporary Orders enables the parties of a case to bring these types of issues before the court and ask the court to provide a temporary resolution while the parties await the court’s final decision on the pending issues.

Some issues that are typically addressed in a Motion for Temporary Orders are:

• Temporary Physical Custody.  Whether both parties will be awarded joint physical custody of the children, or whether one party will be awarded primary physical custody of the children.

• Temporary Legal Custody.  Whether both parties will be awarded joint legal custody, or whether one party will be awarded sole legal custody of the children.

• Parent Time.  How much time each parent will be allowed to spend with the children, and the dates and times of that parent time.

• Child Support.  Whether one party will be entitled to child support from the other party.

• Division of Expenses.  If there are ongoing expenses carrying over from a marriage (mortgage, debt, business expenses, etc.) whether these expenses be shared between the parties.  If the children have recurring expenses, such as extracurricular activities, school fees, etc. the court may likewise order that such expenses be shared between the parties.

• Contribution to Insurance Premiums and Out of Pocket Healthcare Expenses.  Typically the court will order that the parents share in the costs of the children’s insurance coverage and any out of pocket expenses involved with the children’s healthcare.

• Division of Property.  Whether one of the parties should be entitled to live in the marital home, have exclusive access to vehicles, have access to bank accounts, or otherwise be entitled to certain use of marital property until the court has made its final decision on the case.

• Restraining Orders.  Whether the court needs to make an order for the protection of the other party.  For example, the court may require that one party stop visiting the work or residence of the other party, that they stop using abusive language toward the other party, or that they stop disparaging the other party in front of the children.

Once your motion has been filed, the other party has 14 days to respond.  At the hearing, both parties and attorneys will be present and the attorneys will make arguments before a court commissioner.  Generally, the commissioner will make a decision on your motion right there in court immediately after the attorneys have plead their respective cases.  If you do not like the decision, you have 14 days to object and have the commissioner’s decision reviewed by your assigned district court judge.

Remember, these rulings are temporary in nature and do not constitute the final and permanent outcome of your case.  These temporary orders may be changed, and frequently are changed, in the final divorce decree by court ruling or if the parties come to an agreement and settle the case before trial.

You can find more information in our Utah family law library.  Or contact us to schedule a free consultation.