What Do I Really Need to Prove to Modify a Child Custody Award Order in Utah?

Summary of Zavala v. Zavala

Zavala v. Zavala, 2016 UT App 6

Opinion No. 20141031-CA

Filed January 14, 2016



If a custody award has already been entered, custody will not be re-examined absent a material and substantial change of circumstances. The required finding of that a material and substantial change of circumstances must be found before an existing joint legal or physical custody order can be modified is statutory. Utah Code section 30-3-10.4(2)(b). Neither the court or appeals nor the supreme court has purported to—or could—alter that requirement. Utah’s appellate court cases cannot be read to override the clear terms of a statute. Rather, our courts have recognized the requirement for what it is: a legislative expression of the principle of res judicata. But whether a change of circumstances qualifies as “sufficiently substantial and material to justify reopening the question of custody,” depends on the nature of the underlying custody award.

Although the res judicata policy underlying the changed-circumstances rule is at a low ebb, because “an unadjudicated custody decree is not based on an objective, impartial determination of the best interests of the child.” Elmer v. Elmer, 776 P.2d 599 at 603, in such a case, the court does not re-determine the custody award, but adjudicates it for the first time. Thus, a lesser showing will support modifying a stipulated award than would be required to modify an adjudicated award. Elmer’s balancing of interests thus respects the statutory framework, recognizes the true nature of the inquiry, and—most importantly—accords priority to the best interest of the child. Any contrary statements in Woodward v. LaFranca (305 P. 3d 181 (Ut.Ct. App. 2013)) notwithstanding, Elmer does not permit the best-interest inquiry to swallow up the changed-circumstances inquiry: “Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.” Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553.

The trial court may consider pre-decree facts on a petition to modify an existing joint legal or physical custody order. While Utah Code § 30-3-10.4(1) provides that the district court may modify an order establishing joint legal or physical custody only if the circumstances of the child, or one or both parents (or joint legal or physical custodians), “have materially and substantially changed since the entry of the order to be modified,” that statute does not remove pre-decree conduct from the inquiry; in fact the opposite is true. “When determining whether there has been a substantial change in circumstances, the district court will consider the nature and materiality of any changes in those circumstances upon which the earlier award of custody was based.’” Snyder v. Snyder, 2015 UT App 245, ¶ 10, 360 P.3d 796 (quoting Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982)). Furthermore, the factors outlined in the subsections of Utah Code Section 30-3-10 and Subsection 30-3-10.2 guide the court’s original custody award and include the parties’ “past conduct” (§ 30-3-10(1)(a)(i)); their “past and present ability . . . to cooperate with each other”; “any history of, or potential for, child abuse”; and “any other factors the court finds relevant,” (§ 30-3-10.2(2)(h), -(i), -(j)). Nothing in the statutes states or implies that, in determining whether modifying a custody award would serve the best interest of the child, the court must confine its inquiry to the parties’ conduct after entry of the original custody award. Rather than excluding the parties’ pre-decree conduct from the inquiry, the controlling statutes invite the district court to include it.

Rule 4-903 specifies factors that “evaluators must consider and respond to.” Id. R. 4903(5). But it “does not direct the court to consider the factors enumerated therein. Utah Code of Judicial Administration rule 4-903 governs the qualification and selection of custody evaluators and the evaluations they generate. Its stated purpose is to “establish uniform guidelines for the preparation of custody evaluations.” Id.

Our supreme court listed in Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982) factors to be considered in a best-interest inquiry. Id. at 41, but the supreme court did not purport to create a list of factors the trial court must consider on peril of reversal. Rather, it listed “[s]ome factors” that the court “may consider” in determining the child’s best interest. Id.

Filing a petition to modify a decree of divorce and alleging a material and substantial change of circumstances waives any claim by the petitioner that such a change had not occurred.

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