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Modifying Custody


Talk to an Attorney

Modifying custody can be complicated. Consider talking to an attorney to go over your options. One way to talk to an attorney is to visit a free legal clinic. Clinics provide general legal information and give brief legal advice. For more information, see our webpage on Finding Legal Help.


Jurisdiction

The Utah court must have "jurisdiction" to modify custody. Jurisdiction can be very complex, especially if the controlling order was entered in a state other than Utah or the child or the parents reside in a state other than Utah. Before spending the time and money to modify child custody in a Utah court, make sure that the Utah court, rather than the court of another state, has jurisdiction. For more information, see our chart outlining Jurisdiction to Modify a Custody or Parent-time Order.


Types of Custody

There are two parts to custody: physical custody and legal custody. Physical custody means where the children live; legal custody means which parent has the right to make important decisions about the children. Unless there is domestic violence in the family, or the child has special needs, or the parents live far apart, or there is some other factor the court considers relevant, joint legal custody is presumed to be in the child's best interest. A party may overcome this presumption with suitable evidence. Utah recognizes several custody arrangements for minor children. These include:

Sole Legal and Sole Physical

Either parent can be awarded the sole custody of the children. This means that the children live with one parent and that parent makes the major decisions about the children's lives. If sole custody is awarded, the non-custodial parent is awarded parent time with the children. Utah has a standard parent time schedule for children 5 and older, and a standard parent time schedule for children under 5. Parents can obtain a court order that is different from the standard parent time schedules. The court can order any schedule that is appropriate for the children and the parents.

Joint Legal and Joint Physical

With this arrangement the children live with both parents and both parents make important decisions about their children. Joint custody is most successful when both parents communicate well with one another and are willing to work together to take care of the children's needs.

Joint legal custody means that both parents make decisions about major issues affecting the children by working together. These issues may include, among others, what religion (if any) the child will be raised in, whether the child should receive medical treatment or undergo a major medical procedure, where the child will go to school, and permission to get a tattoo, get married, or join the military before age 18. Joint legal custody does not affect the children's physical residence.

Joint physical custody means that the children live at least 111 nights a year in the home of each parent. For practical reasons, joint physical custody works best when both parents live in the same general area.

Joint Legal and Sole Physical

In this arrangement, children live with one parent over 225 nights per year, and the other parent has regular parent time, but both parents make important decisions about their children.

Split Custody

This arrangement means that each parent is awarded the sole physical custody of at least one of the children. Legal custody of the children by the non-custodial parent may or may not be shared as ordered by the court.


Custody Orders From Different Courts and in Different Cases

Custody orders may be issued by the district court or juvenile court. Modification petitions must be filed in the same court that issued the controlling order.

Custody may be established by the court as a separate action or as part of a number of different types of cases, including divorce, annulment, separate maintenance, paternity, protective orders, adoption, neglect and dependency, and termination of parental rights. Many of the laws governing custody are in Utah's divorce statutes even though the parents may never have been married.


Modification of Custody

Either parent may file with the appropriate court a petition to modify the custody order. The forms in the section on Forms are for cases in district court only.


Alternative Dispute Resolution (ADR) Before Petitioning to Modify

If you have an order of joint legal custody or joint physical custody then most likely your order contains provisions that tell you what type of dispute resolution you and the other parent must try to use before you can petition the court to modify your custody order. For example, your order or your parenting plan may state that the parents must use a professional mediator to try to resolve a parenting or custody dispute before going to court. Use the dispute resolution process described in your order.

You may also want to try to resolve any disputes on your own. For more information, see our webpage on Alternative Dispute Resolution. If you are able to resolve your disputes, then you can change your existing order by filing a petition to modify and the other required forms and a stipulation to enter judgment. The forms are in the section on Forms.


Material and Substantial Changes

If you and the other parent do not stipulate to the modification, the court must do two things: First, it must determine whether there has been a material and substantial change in circumstances since the controlling order was entered. Second, the court must determine whether modifying custody would be an improvement for and in the best interests of the child. If the case is contested, the parties will have to present evidence of both.

Examples of material and substantial changes after the controlling custody order may include that the parents have remarried, the parents have moved to new communities, or that the child needs to change schools.


Best Interests of the Child

When modifying custody, the court considers the best interests of the child and many factors concerning both the child and the parents. Factors identified in the statutes are listed below, however, some of these factors might not be relevant in your case. And there might be factors relevant in your case that are not listed.

General factors if the parents dispute the change in custody:

  • the parents' conduct and moral standards;
  • which parent is more likely to act in the child's best interest;
  • which parent is more likely to allow the child frequent and continuing contact with the other parent;
  • the depth, quality, and nature of the relationship between a parent and child.

AND

Special factors if there is a request to change any form of joint legal custody or joint physical custody:

  • whether joint legal custody or joint physical custody will benefit the child's physical, psychological, and emotional needs or the child's development;
  • the parents' ability to give first priority to the child's welfare and reach shared decisions in the child's best interest;
  • whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
  • whether both parents participated in raising the child before the divorce;
  • the distance between the parents' homes;
  • the child's preference (if the child can form a preference about joint legal or physical custody);
  • the parents' maturity and their willingness and ability to protect the child from conflict that may arise between the parents;
  • the parents' ability to cooperate with each other and make decisions jointly;
  • any history of, or potential for, child abuse, spouse abuse, or kidnapping; and
  • any other factors the court finds relevant.

Custody and Support

A modification of custody necessarily means modifying child support. For more information, see our webpage on Modifying Child Support.


Custody and Parent-Time

A modification of custody necessarily means modifying parent-time. For more information, see our webpage on Modifying Parent-Time.


Modifying a Child Custody Order From Another State

An order from another state is called a foreign order. The first of several conditions that must be met for a Utah court to modify a foreign order is that the foreign order must be registered and confirmed as a judgment of Utah. For more information, see our webpage on Registering a Foreign Order.


Default Judgment

A parent who fails to answer or otherwise appear after being served with the petition and summons is in default and will lose. A judgment against a non-appearing parent is called a default judgment. For more information and forms, see our webpage on Default Judgments.


Forms


Forms to Petition That Child Custody be Modified

Forms to Respond to a Petition to Modify Child Custody

Forms for Default Judgment (Order Entered Because Other Parent Does Not Answer)

Forms for Asking to go to Trial


Related Information



Page Last Modified: 10/4/2012
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