A court may not impose a sanction of striking pleadings and modify the custody arrangement as a sanction because a custodial parent did not pay the custody evaluation fee

September 20, 2018

In this case, a mother failed to pay her portion of a custody evaluation, and as a sanction, the district court awarded the father sole physical custody of their minor child, modifying the custody arrangement from their divorce decree. The district court did not take any evidence to support a finding that a substantial change of circumstances had occurred or that a transfer in custody was in the child’s best interest. The mother appealed.  The Court of Appeals reversed the district court, [b]ecause the district court did not make the required findings before entering the judgment by default, it exceeded its discretion in modifying the existing custody order.”

The appeals court explained:  Utah law requires courts to make the following two findings of fact before modifying a child custody order: (1) there has been a material change in the circumstances upon which the earlier order was based, and (2) a change in custody is in the best interests of the child. See Utah Code Ann. § 30-3-10.4(2) (LexisNexis Supp. 2017). This two-step approach was first established by the Utah Supreme Court in Hogge and later codified. Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982).  The Court of Appeals described the important public policies in favor of these factual requirements.  The appeals court remanded to the district court for appropriate sanctions against the mother, but cautioned that the sanctions must be “short of modifying custody without conducting the Hogge test.”

Chaparro v. Torero, 2018 UT App 181 (Filed September 20, 2018)

Read the entire case HERE.

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