A Petition to Modify Custody Requires a "Substantial and Material Change of Circumstances" Whereas a Request to Modify Parent Time Only May Only Require a "Change of Circumstances"

April 12, 2018

In this case, at the time of trial, the parties lived about 60 minutes apart. The court found that the father's "plan would require [the] Child to spend considerable time commuting by car between [the mother's residence and the father's residence] amounting to upwards of an hour each way, before school and after school—and that it was not in
Child’s best interest to do so merely to accommodate [the father's] preferred parenting plan." (Internal quotations omitted). Immediately after trial, the father moved to within 15 minutes of the mother's residence and filed a petition to modify the arrangement claiming that the moved constituted a significant change in circumstances to reopen the issue. The trial court denied the father's request for changes to the previous order and the father appealed.

The Utah Court of Appeals affirmed the trial court's decision and reminded and articulated that there are different standards for a requested change of "custody" and a requested change of "parent time."  The court in Pulham v. Kirsling, 2018 UT App 65 (Filed April 12, 2018) states:

"¶50 The Utah Supreme Court has recognized that the
threshold “change in circumstances required to justify a
modification of a divorce decree varies with the type of
modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah
1982). As a general rule, modifying a custody order requires a
showing of a substantial and material change in circumstances.
Doyle v. Doyle, 2011 UT 42, ¶¶ 24–25, 258 P.3d 553. In contrast,
altering parent-time arrangements requires a showing of
changed circumstances, but that “showing does not rise to the
same level as the substantial and material showing required
when a district court alters custody.” Jones v. Jones, 2016 UT App
94, ¶ 10, 374 P.3d 45 (citing Becker v. Becker, 694 P.2d 608, 609, 611
(Utah 1984); Haslam, 657 P.2d at 758); accord Blocker v. Blocker,
2017 UT App 10, ¶¶ 12–14, 391 P.3d 1051."

Thus, if a party is requesting a change in custody, they must show the "substantial and material change in circumstances" standard.  If a party is trying to only modify parent time, the standard is only "changed circumstances."  In all cases, once these "changes" are shown, the next step is to focus on the best interest of the child under the changed circumstances.

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