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 have 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
Oftentimes, 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.
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.