Category: Change of Circumstances

As a Joint Legal and Physical Custodial Parent, Can I Legally Prevent the Other Parent From Going on a Vacation (Either Out of State or Out of the Country) With Our Child or Children?

Unless a court were to order that a parent was barred from traveling out of state or out of the country with the children on vacation, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country on vacation, even if the other parent objects. Of course, if a parent wanted to travel somewhere that is clearly dangerous for anyone or clearly dangerous or deleterious to the children given their age or other relevant factors, a parent could object to traveling there with the children on that basis, but you’ll notice that the basis of the objection wouldn’t be “I don’t want the children traveling there with you” but an objection based upon placing the children in harm’s way. Otherwise stated, if the other parent simply doesn’t like the idea of you traveling out of state or out of the country with the children, that alone would not be a sufficient basis to prevent the children from traveling there.

Now at the beginning of this post I stated that unless a court were to order that a parent was barred from traveling out of state or out of the country with the children, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country, even if the other parent objects. Such an order would be very hard to come by.

Parents have a constitutional right to travel freely, and thus a constitutional right to travel freely with their children if they have sole or joint custody of those children. For a court’s order barring or restricting travel to survive and appeal and be legally enforceable, the court would have to have very good reasons for restricting a parent’s right to travel with the children, such as a parent having abducted or attempted to abduct the children in the past, that parent’s effort to abscond with and conceal the children from the other parent, whether the parent is a flight risk, the parent’s history of interfering with parent-time or visitation, and failure to provide required notices in advance of travel with the children.

Utah Family Law, LC | | 801-466-9277

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How easy is it to change your child’s last name?

I cannot answer this question as it applies in all jurisdictions, but I can answer the question as it applies in the jurisdiction where I practice divorce and family law (Utah): 

Here are the applicable Utah Code sections: 

42-1-1. By petition to district court — Contents. 

Any natural person, desiring to change his name, may file a petition therefor in the district court of the county where he resides, setting forth: 

(1) The cause for which the change of name is sought. 

(2) The name proposed. 

(3) That he has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 

42-1-2. Notice of hearing — Order of change. 

The court shall order what, if any, notice shall be given of the hearing, and after the giving of such notice, if any, may order the change of name as requested, upon proof in open court of the allegations of the petition and that there exists proper cause for granting the same. 

42-1-3. Effect of proceedings. 

Such proceedings shall in no manner affect any legal action or proceeding then pending, or any right, title or interest whatsoever. 

That seems fairly easy, right? I agree, it does seem easy (it deceptively seems easy), and if all you needed to do was go by what the Utah Code says is required of you to get a name change, you’d be right. But for reasons I do not understand, there are many “unwritten rules” governing a name change in Utah, whether for an adult or a minor child. Otherwise stated, if all you did was: 

  • file a petition in the court stating: 
    • the cause for which the change of name is sought; 
    • the name proposed; 
    • that you or your minor child have/has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 
  • schedule the hearing on the petition; 
    • prove three allegations that you were required to make in the petition; 
    • prove that there exists “proper cause” (whatever that means) for granting the petition for change of name; 

that should be all you need to do, according to the Utah Code. But if that is all you did, there is a good chance your petition would be denied. So what are the “unwritten rules” you need to abide by to get a name change for yourself or your minor child? A good place to find out is here: 

Utah Family Law, LC | | 801-466-9277  

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Pending divorce spouse has moved out and stopped paying bills.

Pending divorce spouse has moved out and stopped paying bills. Should I report to my attorney or just wait until we go to court? 

Report this to your attorney immediately. There are many things—and at least two specific things—that you and your attorney can do in response in an effort to protect you and your family.  

And the sooner you inform your attorney, the faster your attorney can respond and the more your attorney can do to ensure that your attorney’s actions provide you the greatest benefit and the greatest protection. 

You want to ensure that bills and other important family expenses are being paid for your and your children’s well-being, to prevent losing your home to foreclosure or eviction, ensuring that you have heat and water and electricity, to ensure that the car is not repossessed, etc. 

You want to ensure that bills and other obligations are paid in full and on time to protect your credit rating, which will be even more important to you after the decree of divorce is entered and you are newly single and will need to rely upon your credit alone. 

If there are already temporary orders (also known as orders pendente lite) in place that order your spouse to pay some or all of certain family expenses, bills, and obligations, you and your attorney can file a motion with the court to enforce these orders and too hold your spouse in contempt for failing to pay them and to compel your spouse to pay them. If such orders are not yet in place,, you and your attorney can file a motion to obtain them for the purpose of ensuring that family expenses continue to be paid during the pendency off your divorce action. 

Utah Family Law, LC | | 801-466-9277

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Our agreement says no child support, can my ex ask for it anyway?

Can my ex ask for child support? I have a 50/50 custody and no child support divorce agreement, but his mother alienated him against me and now he refuses to visit me. The kid is 16 years old. 

I cannot speak for all jurisdictions, obviously, because 1) I do not know the law in every jurisdiction and 2) I am not licensed to practice law in every jurisdiction, but I can tell you what I know and what I’ve experienced in the jurisdiction where I practice divorce and family law (Utah). 

SHORT ANSWER: Possibly. Likely. 

LONG, MORE EXPLANATORY ANSWER: The scenario is as follows: 

  • the court has made a certain child custody and parent-time award 
  • but the child refuses too comply with the court-ordered child custody and parent time schedule, and spends all of his/her time living with one parent and refuses to spend any time in the care and custody of the other parent 

The questions are : 1) can the fact that the child has, in essence, create a de facto sole custody arrangement, and if so, 2) can that de facto sole custody arrangement result in the de facto noncustodial parent being forced to pay child support to the de facto custodial parent, even though that parent’s de facto noncustodial status is in no way that parent’s fault? 

The answer is: 1) yes, it can (it’s not inevitable, but it can happen), and 2) yes, it can (it’s not inevitable, but it can happen).  

Why? Before I address that question, let’s discuss a bit of child support policy. 

  • Some would argue that the purpose of the child support payment obligation is to ensure that each parent has sufficient funds to provide for the child’s financial needs and maintain a lifestyle commensurate with the parents combined earnings.  
    • So if one parent has a lower income than the other parent, the court will order the more affluent parent to pay the other parent some money to help the less affluent parent maintain the lifestyle that the child ostensibly enjoys when in the care and custody of the more affluent parent. It’s not the only way to craft child support policy, but it’s a reasonable way.  
    • Courts that subscribe to this way of thinking then argue that if a child refuses to comply with, say, a joint physical custody award (resulting in only one parent being burdened with fully or primarily having to shelter, feed, clothe, educate, and entertain the child), it would thus be unfair to burden the de facto primary or sole custodial parent with all the financial burdens associated with the child’s needs.  
    • The other parent, so the thinking goes, needs to pay his/her “fair share” of the child’s financial support needs. When children spend time in the care and custody of both parents, then the financial support burdens are divided between both parents. That make sense. That’s patently fair.  
    • When the child spends all of his/her time in the care and custody of just one parent, then it would be unfair for that parent to be solely responsible for the child’s financial support. If courts followed such a policy, then it is feared that as a means of avoiding the financial obligations of child support, parents would fight to ensure that only one parent has sole or primary custody of the child. 

So even when a court-ordered joint custodial parent has, through no fault of his/her own, been rendered a de facto noncustodial parent by the child refusing to comply with the court’s custody order, many courts (many, not all) might react to this situation by 1) modifying the child custody order to reflect the de facto situation; and 2) consequently modifying the child support award.  

Some courts may take a different approach in such a situation, although such an approach is, in my experience less common. That approach would be based on the idea that children don’t have the power to dictate child custody and parent time schedules to the court; therefore, if a child refuses to comply with the court’s child custody and parent time orders, the court is not going to punish the innocent de facto noncustodial parent. But you can see why such an approach leaves a bad taste in the mouths of many people, not leastwise the de facto custodial parent. 

If the parent in the de facto custodial parent position can prove that he/she did not compel or induce the child to refuse to comply with the court’s custody and parent time orders, that parent could certainly argue that he/she is innocent too, and should not be punished for the circumstances created by a noncompliant child.  

Which raises the next question (and brings the discussion full circle): why not have the court compel the child to comply with its child custody and parent time orders? I have addressed that question on many times, but most recently in response to these two questions here: 

and here: 

Utah Family Law, LC | | 801-466-9277

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What happens to a child support order if both parents move out of the country?

Unless the child support order provides for a change in the child support obligation or benefit in the event and due to the parents moving out of the country, then the child support order remains unchanged and remains in full force and effect. 

Utah Family Law, LC | | 801-466-9277

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Can you seek a temporary custody award if you have an apartment but you’re not on the lease, but your fiancé is on the lease and also the child does have their own room?

I get this question frequently. The answer: Sure, you can ask (you can always merely ask) the court to award you temporary custody of the child(ren) under such circumstances, but whether the court will grant your request under such circumstances is a separate question.

Call me old fashioned, but the “my fiancé” term is, in child custody and family law settings, usually followed by words like “of 5 years” or “with whom I have 3 kids,” so if you are in such a situation, then use of “my fiancé” doesn’t give you, your “fiancé” or your circumstances the appearance of greater legitimacy or stability than shacking up. Asserting, “I have an apartment, but I’m not on the lease” means “my residential circumstances are insecure and unstable” and “I can be kicked out of where I currently live at any moment.”

Likewise, claiming “my child(ren) has/have his/her/their own room in someone else’s apartment that I don’t lease” means “my child(ren)’s residential circumstances are insecure and unstable too.”

But if the other parent’s circumstances are even less secure and less stable than yours, living with your boyfriend/girlfriend in his/her apartment at his/her pleasure may lead the court to award you temporary custody in the absence of any better alternative.

Utah Family Law, LC | | 801-466-9277

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Law from a Legal Assistant’s Point of View, Week 1: It’s all new to me

My favorite part of being new at something is that feeling of every aspect being unique and energizing.  

I am experiencing that feeling now in my new job as a legal assistant for Utah Family Law, LC. I have never been a legal assistant before.  

I moved back to Utah in late June after spending a year in Chicago. Much about life in Utah does not feel new to me anymore, but the adventure this time around came about when I needed a place to work.  

I graduated from college in 2020 (Bachelor of Arts in Philosophy). I have been considering going to law school, so I needed a job that would give me experience to help me determine whether it’s a path I want to follow. My particular interest is alternative dispute resolution (ADR), so I started looking for opportunities that were connected to this area of law in any way. 

I did not have an extensive list of connections in the law profession, and I had no idea where to start. I sent out my resumé to some law firms, along with a note explaining how I may want to attend law school and pursue a career in ADR. I did not expect this to work all that quickly (if at all), but by some miracle the next day after I e-mailed Eric Johnson at Utah Family Law, LC.  

Eric and I spoke a few times over the next few days, met for an interview, and he offered me a job as his new legal assistant.  

Eric and I want to share with you an account of my experiences in this job to highlight what I don’t know and what I learn about Utah divorce and family law practice. What confuses and frustrates me. What surprises and disappoints me. What I like about it too.  

This blog post is my first in a series that I will publish each week, tracking with each week since I was hired. That’s right; this first blog post this comes out my first full week on the job. I am a complete neophyte, an innocent looking at this with fresh eyes. Much like many of you who may experience a divorce and family law case. This is why Eric wanted me to share my observations and insights as I go.  

As I stated previously, at the time of my writing this post, I have been working as a legal assistant for just under a week. Already it has been incredibly enlightening (the last time I felt so inundated with new knowledge/out of my depth was when I was learning Hungarian while living in Hungary as a missionary for the Church of Jesus Christ of Latter-day Saints).  

In the short span of time I’ve been working here, I have made calls to the Utah Court of Appeals, filed requests for media coverage of public court hearings, and attended a hearing on a motion for temporary orders in a divorce proceeding. 

Now that I think about it, the mission experience and this new legal assistant experience are surprisingly similar. Each requires me to learn a “new language” while I simultaneously complete tasks in that new language. Each demands that I meet new people and establish a relationship right away. I also have needed to rely heavily on the experience of others who are farther down this road, who have more experience and skill, and to be humble and patient in that aspect.  

The most exciting similarity between these two experiences for me is the energy I feel in the work. A mission, while incredibly hard, is an exciting time. The work is exhausting but at the same time fun. Some days more than others, but that is true of everything in life.  

Even being tangentially involved with the practice of law for a week has been immensely rewarding. I feel part of something bigger than myself, which I think is what most of us would like to consider the law to be. The law is supposed to be a noble thing that guides and protects us as citizens. Unfortunately, the law has flaws, but it is still an honor to seek to uphold that ideal and strive to extend that ideal to everyone. 

Utah Family Law, LC | | 801-466-9277  

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“Best interest of the child” and a “material and substantial change of circumstances”

Doyle v. Doyle, 258 P.3d 553 (Utah Ct.App. 2011) 2011 UT 42m ¶ 38, “Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances. See Becker, 694 P.2d at 611 (rejecting bare best interests argument and stating that “in order to reach the best interests standard and reconsider a custody award, there must be a showing that there has been a change in circumstances that is material to the custody issue”).

It occurs to me that “an overwhelming case for the best interest of the child [justifying a modification of the child custody award]” IS proof of a material and substantial change in circumstances–a change in the circumstances of, if not one or both parents, the circumstances of the child himself/herself.

Harper v. Harper, 480 P.3d 1097, footnote 6 (Utah Ct.App. 2021), 2021 UT App 5:

[6] Unlike an adjudicated custody decree, such as the one in this case, a stipulated custody decree “is not necessarily based on an objective, impartial determination of the best interests of the child, and therefore the res judicata policies underlying the changed-circumstances rule are at a particularly low ebb.” Peeples v. Peeples, 2019 UT App 207, ¶ 15, 456 P.3d 1159 (cleaned up). Thus, “in some cases, a lesser showing of changed circumstances may support modifying a stipulated award than would be required to modify an adjudicated award.” Id. (cleaned up). For the same reasons, in change of custody cases involving a nonlitigated custody decree, the changed-circumstances rule “must not be so inflexible as to categorically foreclose examination of the child’s well-being.” Taylor v. Elison, 2011 UT App 272, ¶ 14, 263 P.3d 448.

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