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Posted by eric_k_johnson on November 7, 2011
Dear Eric:
I will likely move from Utah to a another state a few years after my divorce is final. Does these plans affect what kind of child custody award I should seek?
Sincerely,
Peripatetic Parent
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Dear Peripatetic:
Do you understand the distinctions between physical and legal custody in Utah divorce law, and what these distinctions can mean in your divorce action? An award of sole physical custody should, under most circumstances (courts are granted such incredibly broad discretion in divorce cases that you never can predict with any real degree of accuracy what a court will do) allow you to move out of state without having to obtain your husband’s permission.
Case Law Discussing Modification of Child Custody Based Upon Relocation Out of State
Custody order preventing mother from retaining custody if she ever moved outside of county was overbroad in that it ignored possibility that move, other than the one contemplated by order, could be in best interests of the children. Utah Code §30-3-10.3(2)(a). Trial court abused its discretion by modifying custody order to provide that mother could not retain custody if she moved outside of county, absent compelling evidence that residing in that county would be better for the children than would be allowing them to continue to reside with their lifelong primary caregiver. The focus of the trial court’s analysis and decision, then, was not on the parties’ respective parenting skills. Larson v. Larson, 888 P.2d 719, 722-23 (Utah Ct. App. 1994).
Unless there were compelling evidence that residing in Summit County, Utah, would be better for the children than allowing them to continue to reside with their life-long primary caregiver, the trial court exceeded the exercise of sound discretion by modifying custody order to provide that mother could not retain custody if she moved outside of county, absent compelling evidence that residing in that county would be better for the children than would be allowing them to continue to reside with their lifelong primary caregiver. Larson v. Larson, 888 P.2d 719, 722-23 (Utah Ct. App. 1994).
Divesting a parent of custody if she moves may be appropriate where older children are so intertwined with a community and less dependent on a particular caregiver that removing them from their community would be more detrimental than disrupting the existing custody arrangement. Larson v. Larson, 888 P.2d 719, 722-23 (Utah Ct. App. 1994).
Custodial parent’s impending move to another state not a substantial change where the evidence does not indicate that the custodial circumstances of the child or the parenting capabilities of the respondent will be affected by the move. See Jorgensen v. Jorgensen, 599 P.2d 510, 512 (Utah 1979). Becker v. Becker, 694 P.2d 608, 610-11 (Utah 1984).
However, move was material to the question of visitation. In Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982), the court stated: “The change in circumstances required to justify a modification of a divorce decree varies with the type of modification sought,” It is clear, then, that a specific change in circumstances may justify reconsideration of one provision of a divorce decree while not justifying reconsideration of another provision. Having found a material change with respect to visitation, the judge then determined that the visitation arrangements should be modified. Becker v. Becker, 694 P.2d 608, 610-11 (Utah 1984).
Do you understand the distinctions between physical and legal custody?
Utah Code § 30-3-10.1. Definitions — Joint legal custody — Joint physical custody.
As used in this chapter:
(1) “Joint legal custody”:
(a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;
(b) may include an award of exclusive authority by the court to one parent to make specific decisions;
(c) does not affect the physical custody of the child except as specified in the order of joint legal custody;
(d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and
(e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.
(2) “Joint physical custody”:
(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support;
(b) can mean equal or nearly equal periods of physical custody of and access to the child by each of the parents, as required to meet the best interest of the child;
(c) may require that a primary physical residence for the child be designated; and
(d) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.
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