JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Jillyn Smith appeals the district court’s order regarding custody and child support for her minor son (Child). Because we determine the court abused its discretion by awarding Smith sole physical and legal custody while requiring joint decision-making between Smith and Child’s father, DeJuan Blake, we vacate that part of the court’s custody award. Furthermore, because we conclude the court made a mathematical error in calculating the amount of child support, and that a further examination of the evidence of Blake’s income is warranted, we reverse the court’s child support award and remand for recalculation as appropriate.
BACKGROUND
¶2 Smith met Blake in 2007 in Las Vegas, Nevada, and the two entered into a relationship. As a result of the relationship, Smith became pregnant with Child in 2009. At the time Smith learned about the pregnancy, she was no longer living in Las Vegas—she had moved to Utah to escape her relationship with Blake.
¶3 After a tumultuous pregnancy, during which Blake continuously asked Smith to have an abortion, Child was born in Utah in October 2009. Blake traveled to Utah to visit Child twice during the first year of Child’s life, with each visit lasting “maybe an hour or two.” The sporadic visits continued over the next few years, with Child and Smith traveling with Blake on short trips together. Although Smith asked Blake for financial support during this time, Blake did not provide support and instead always offered an “excuse.” Eventually, the communications between the couple became too toxic and Smith elected to “take a break from communication” with Blake.
¶4 Thereafter, Smith decided to “give [Blake] a second chance.” Blake and Child had “maybe a few” “infrequent[]” telephone conversations a year, but the conversations were short due to Child’s speech impediment. Blake was not involved in Child’s schooling or scheduling, he never attended Child’s doctor’s appointments, and he “wouldn’t follow through” or offer any explanation as to why he could not help Smith with financial support for Child’s medical care or educational needs.
¶5 Blake traveled to Utah in 2015 to attend Child’s birthday party. Toward the end of the party, Blake and Smith had a verbal altercation regarding Blake’s failure to honor their agreement for Blake to pay Smith child support. Following this visit, Blake returned to Utah once in 2016 to attend Child’s baseball game. That visit also ended in a verbal altercation.
¶6 In January 2018, Blake petitioned the district court for paternity and custody of Child. At the time, Child was eight years old and living with Smith.
¶7 After initiating custody proceedings, Blake filed a series of three financial declarations with the district court. Blake is self-employed and owns a company managing professional and aspiring boxers. Blake’s stated gross income, monthly expenses, and debt listed on each of the three financial declarations differed significantly. In the first declaration, Blake claimed $0 in gross monthly income, $1,875 in monthly expenses, and a debt of $7,240. In the second, Blake claimed $2,000 in gross monthly income, $17,797 in monthly expenses, and no debt. And in the third, Blake claimed $1,686 in gross monthly income, $3,947 in monthly expenses, and no debt. The bank statements filed with each disclosure were incomplete; however, the bank statements that were submitted showed that between August 2017 and January 2019, Blake made deposits into his personal account totaling $456,669.98, and that during that same time, he made withdrawals totaling nearly $50,000 for investments in cryptocurrency, payments to his mother, payments to the mother of one of his other children, and luxury clothing.
¶8 The case proceeded to a bench trial in October 2020. At trial, Smith detailed the relationship between Child and Blake. She explained that Blake had never been actively involved in Child’s life and that Blake had not seen Child at all since May 2016. Smith testified that she and Blake had reached an “original agreement” for child support where Blake would pay her $1,000 per month. She further testified that this agreement did not start until 2015—when Child was already six years old—and that the payments had lasted for only one month. In total, Smith estimated that Blake had contributed $1,600 in support payments “over the entirety of [Child’s] life.”
¶9 Following trial, the district court adjudicated Blake as Child’s father, awarded Smith sole physical and legal custody of Child, and awarded Blake standard relocation parent-time pursuant to Utah Code section 30-3-37, which is approximately 17% of the year. In reaching its legal custody determination, the court analyzed the statutory factors outlined in Utah Code sections 30-3-10 and 30-3-10.2 and concluded that the presumption favoring joint legal custody had been rebutted and that joint legal custody was not in Child’s best interest. However, the court ordered a joint decision-making arrangement between the parties, requiring that the parties “discuss with each other decisions that should be made regarding [Child].” The arrangement further provides, “If there is a dispute, the parties should attend mediation and each pay half of the mediation fees. If the dispute remains, then [Smith] will have final say. [Blake] can . . . bring the matter to court if he is unsatisfied with the decision.”
¶10 Regarding child support, the district court primarily calculated Blake’s past child support payments based on his 2018 tax record, where he claimed $45,050 in gross receipts and $34,483 in deductions. After reviewing the evidence, the court concluded that several of the deductions—totaling $27,530—were unsupported and accordingly struck those deductions. Based on this, the court found that Blake’s “annual income should be $23,790” through March 2020. However, given the outbreak of the COVID-19 pandemic, the court concluded that “Blake’s income has come to a halt,” and it accordingly found it “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.”
ISSUES AND STANDARDS OF REVIEW
¶11 Smith now appeals the district court’s order regarding custody and child support, raising two issues for our review. First, Smith argues the court abused its discretion when it “issued an internally inconsistent [custody] award” giving Smith “sole legal and physical custody but also order[ing] joint decision-making” between her and Blake. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (quotation simplified). “But this broad discretion must be guided by the governing law adopted by the Utah Legislature. And on matters of statutory interpretation, we review for correctness.” Dahl v. Dahl, 2015 UT 79, ¶ 155, 459 P.3d 276 (quotation simplified). And “[w]here the court’s findings are internally inconsistent on a material point, reversal and remand are appropriate.” Vandermeide v. Young, 2013 UT App 31, ¶ 21, 296 P.3d 787, cert. denied, 308 P.3d 536 (Utah 2013).[1]
¶12 Second, Smith argues the district court abused its discretion when it calculated Blake’s income for purposes of child support. “We review the district court’s decisions regarding child support . . . under the abuse of discretion standard.” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (quotation simplified). Where the court’s findings contain mathematical error or conflict with the record, we will remand for recalculation. See Miner v. Miner, 2021 UT App 77, ¶¶ 57–60, 496 P.3d 242.
ANALYSIS
I. Custody
¶13 Smith first challenges the district court’s custody award, contending the court abused its discretion in crafting the award because it is “internally inconsistent.” According to Smith, the joint decision-making arrangement “undermines” her award of sole physical and legal custody because it “allows [Blake] to force mediation and litigation whenever he disagrees with a decision made by [Smith], even though she has sole legal and physical custody.” We agree.
¶14 As an initial matter, the Utah Code does not define “sole physical custody” or “sole legal custody.” But in Hansen v. Hansen, 2012 UT 9, 270 P.3d 531, our supreme court provided guidance as to the meaning of those terms. In Hansen, the father and the mother were awarded joint custody of their daughter following their divorce. Id. ¶ 2. The mother was awarded sole physical custody and the father was ordered to pay child support to the mother. Id. Sometime later, the daughter entered a private youth homeless shelter, where she lived through her eighteenth birthday. Id. While the daughter was living at the shelter, the father filed a petition with the district court seeking to redirect his child support payments from the mother to the homeless shelter. Id. ¶¶ 2–3. The court denied the motion, which denial was ultimately upheld by the Utah Supreme Court. Id. ¶¶ 4–5, 30.
¶15 The supreme court’s decision centered on the meaning of custody. Although the daughter had been residing at the shelter, the court determined that the daughter’s physical custody had not changed; rather, the mother still retained physical custody. Id. ¶¶ 15–19, 28. The court explained,
Family law treatises consistently define custody as a bundle of constituent rights and obligations to a child’s possession, care, and control, and explain that the essence of custody is control over all aspects of the child’s life coupled with responsibility for the child’s welfare. Standard dictionary definitions of custody are to the same effect.
Custody is often divided into two subsets: legal and physical custody. Both encompass a duty of control and supervision. While legal custody carries the power and duty to make the most significant decisions about a child’s life and welfare, physical custody involves the right, obligation, and authority to make necessary day-to-day decisions concerning the child’s welfare. Although the latter is limited to the right to control the child’s daily activities, it still involves a right of control. This grant of authority is necessary so that the custodian can control and discipline the child or make emergency medical or surgical decisions for the child.
Id. ¶¶ 16–17 (quotation simplified). Put differently, “the legal duty of control or supervision [is] the essential hallmark of custody.” Id. ¶ 18 (quotation simplified). Legal custody encompasses the ability to make major decisions in a child’s life, while physicalcustody encompasses the ability to make day-to-day decisions in a child’s life.
¶16 Although the Utah Code does not define sole physical or legal custody, it does define “joint legal custody” and “joint physical custody.”[2] Under the current statutory scheme, a parent may be awarded “joint legal custody,” which is defined as “the sharing of the rights, privileges, duties, and powers of a parent by both parents.” Utah Code § 30-3-10.1(2)(a) (emphasis added). As this court has long recognized, the purpose of joint legal custody is to allow “both parents [to] share the authority and responsibility to make basic decisions regarding their child’s welfare.” See Thronson v. Thronson, 810 P.2d 428, 429–30 (Utah Ct. App. 1991), cert. denied, 826 P.2d 651 (Utah 1991).
¶17 Taken together, it follows that an award of “sole” legal custody does not involve sharing the “rights, privileges, duties, and powers of a parent.” See Utah Code § 30-3-10.1(2)(a). Accordingly, when the district court awarded sole legal and physical custody to Smith, it also awarded her alone the “rights and obligations to [Child’s] possession, care, and control,” see Hansen, 2012 UT 9, ¶ 16 (quotation simplified), including the sole authority to “make the most significant decisions about [Child’s] life and welfare,” see id. ¶ 17 (quotation simplified), and the “authority to make necessary day-to-day decisions concerning [Child’s] welfare,” see id. (quotation simplified). It therefore was inconsistent to simultaneously order a joint decision-making arrangement.
¶18 Moreover, the joint decision-making arrangement is at odds with the district court’s own findings regarding Child’s best interest. “In making a custody determination, a [district] court’s primary focus is what custody arrangement would be in the best interest[] of the child.” Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 4, 241 P.3d 365. Utah law presumes that joint legal custody is in a child’s best interest, but that presumption may be rebutted by showing “by a preponderance of the evidence that it is not in the best interest of the child.” Utah Code § 30-3-10(3)–(4). And under Utah law, there is “neither a preference nor a presumption for or against joint physical custody or sole physical custody.” Id. § 303-10(8).
¶19 “In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider” a number of statutory factors. See id. § 30-3-10.2(2). Here, the court analyzed the statutory factors and determined that awarding Smith sole legal and physical custody of Child was in Child’s best interest. In particular, the court found that there was “very little evidence provided that either parent could function appropriately with co-parenting skills,” that it was “unclear” whether the parties could work together to reach shared decisions in Child’s best interest, and that there was “very little evidence” the parties “actually discussed and made decisions together.” In light of these findings, it is unclear how the joint decision-making arrangement—which is not limited to major decisions but instead encompasses all decisions—could be properly viewed as advancing Child’s best interest. It does not follow from the evidence of the parties’ ongoing issues making decisions relating to Child that such an arrangement would lead to success in the future. Rather, precisely because of the court’s findings, it seems likely that such an arrangement would cause ongoing issues, result in costly mediation and additional court involvement, and be detrimental to Child’s best interest, which is exactly what Utah law seeks to avoid.
¶20 In sum, the district court abused its discretion when it awarded Smith sole physical and legal custody while also ordering a joint decision-making arrangement between Smith and Blake. Although Utah law does not prohibit a joint decision-making arrangement in cases involving an award of joint physical and legal custody, an examination of the underlying statutory scheme reveals that such an arrangement is not compatible with an award of sole physical and legal custody. Furthermore, these competing provisions belie the court’s own findings regarding Child’s best interest as relates to custody. As such, we vacate the portion of the court’s custody award ordering the joint decision-making arrangement.
II. Child Support
¶21 Smith next argues the district court erred in calculating child support. Specifically, Smith takes issue with the court’s calculation of Blake’s income for purposes of child support, contending the court’s calculation (1) contains a mathematical error and (2) is inconsistent with the evidence in the record. We agree.
¶22 The Utah Child Support Act outlines the process by which a district court must evaluate the income of a parent when calculating child support. See generally Utah Code § 78B-12-202. To begin, the court must consider the “gross income” of a parent, which the Utah Code defines broadly as including
prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.
Id. § 78B-12-203(1). And when a parent is self-employed—as is the case with Blake—the statute directs how gross income should be handled. It provides that “[g]ross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. . . . Gross income . . . may differ from the amount of business income determined for tax purposes.” Id. § 78B-12-203(4).
¶23 The district court determined that Blake’s income had been impacted as a result of the COVID-19 pandemic and accordingly evaluated his income for purposes of child support based on what he had earned pre-pandemic and what he was earning during the pandemic. On the record before us, we see two errors in the court’s calculations. First, the court made a discrete mathematical error in calculating Blake’s pre-pandemic income. Second, and more broadly, the court did not consider all the evidence of Blake’s finances when calculating Blake’s income, both pre-pandemic and at the time of trial.
¶24 First, the district court calculated Blake’s past child support payments using his 2018 tax record. On that record, Blake claimed $45,050 in gross receipts. From that, Blake deducted $34,483 as follows: $5,270 for “materials and supplies,” $3,605 for “advertising,” $360 for “legal and professional services,” $500 for “office expense,” $21,760 for “other business property,” and $2,988 for “utilities.” After viewing the evidence, the court found that Blake had failed to adequately explain why he should be entitled to deductions for “materials and supplies” ($5,270), “other business property” ($21,760), or “office expense” ($500), and it accordingly struck those deductions, totaling $27,530. As a result, the court should have concluded that Blake’s income was $38,097, or $3,175 per month rounded. But it did not. Instead, it concluded that Blake’s income was $23,790, or $1,983 per month. This value is mathematically incorrect.
¶25 Second, notwithstanding the mathematical error in the court’s calculation of Blake’s income, the value imputed by the court is inconsistent with the evidence in the record. Utah law is clear that “in contested cases,” a judge is entitled to impute income to a parent so long as the judge “enters findings of fact as to the evidentiary basis for the imputation.” See id. § 78B-12203(8)(a). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified). Accordingly, when imputing income, “the income shall be based upon employment potential and probable earnings considering,” among other things, “employment opportunities,” “work history,” and “occupation qualifications.” Utah Code § 78B-12203(8)(b).
¶26 As explained above, the court calculated Blake’s income at $1,983 per month up until the time that the COVID-19 pandemic began in March 2020. And at trial, which was held in October 2020, the court concluded that due to the pandemic, “Blake’s income has come to a halt” and therefore determined it was “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.” But the financial documents submitted by Blake do not support the low amount of income the court chose to impute.
¶27 Blake’s bank records—which were all filed with the court—show that Blake made deposits into his personal account totaling $456,669.98 between August 2017 and January 2019. These deposits included a check for $200,000, which Blake testified “was for my services that was rendered” in connection with a high-publicity boxing match. And in addition to the deposits, Blake’s bank records show significant withdrawals. For example, the records indicate that Blake had regularly invested in cryptocurrency, had transferred over $15,000 to his mother, had transferred over $9,000 to the mother of one of his other children,[3] and had spent over $10,000 on luxury clothing.
¶28 Despite the evidence of Blake’s spending, Blake did not demonstrate how he was funding his lifestyle, and he claimed only one debt of $7,240 in the first of his three financial disclosures. In light of the foregoing, the district court’s determination that Blake was making no money and therefore should be imputed minimum wage is not supported by the evidence. Rather, the evidence suggests that Blake was less than forthcoming with the court as to the actual amount of his income. As such, on remand the court should reevaluate evidence of Blake’s finances, his earning capacity, and whether he is voluntarily underemployed and should make a further determination as to whether greater income should be imputed to him.[4] In so doing, the court should take special care to ensure that the final award is void of mathematical error.
CONCLUSION
¶29 The district court abused its discretion when it awarded Smith sole physical and legal custody of Child while also ordering a joint decision-making arrangement with Blake. We therefore vacate the court’s custody ruling as it relates to the joint decision-making arrangement. The court also abused its discretion when calculating child support. The current award contains a mathematical error and is not supported by record evidence. Accordingly, we reverse the court’s award of child support and remand with instructions that the court reexamine the evidence to determine whether greater income should be imputed to Blake.
[1] Blake did not file a brief or otherwise appear in this appeal. Although “an appellee’s failure to file a brief does not amount to an automatic default and consequent reversal of the lower court,” our supreme court has recently recognized that such failure does impact the “typical burden of persuasion on appeal.” See AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation simplified). Because an appellee’s failure to raise any argument leaves the appellant’s claims “unrebutted,” see Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 18–21, 279 P.3d 391, “when an appellee fails to present us with any argument, an appellant need only establish a prima facie showing of a plausible basis for reversal,” AL-IN Partners, 2021 UT 42, ¶ 19 (quotation simplified). We question whether the standard articulated in AL-IN Partners should apply the same way in cases such as this where the standard of review on appeal is deferential to the discretionary decisions of the district court. But because this issue was not briefed and our decision on both arguments presented ultimately involves the conclusion that the district court did abuse its discretion and committed other errors, we need not decide the issue today. However, we note the question does warrant additional consideration in a case where it is squarely before the court.
[2] In relevant part, the statute defines “joint physical custody” as when “the child stays with each parent overnight for more than 30% of the year.” Utah Code § 30-3-10.1(3)(a). This particular provision is not applicable here because Blake was awarded standard relocation parent-time which falls below the 30% threshold. See id. § 30-3-37. Nevertheless, Utah law is clear that “[e]ach parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.” Id. § 30-3-10.9(6). Thus, by statute Smith has sole decision-making authority over day-to-day decisions when Child is in her care. Likewise, Blake has decision-making authority over day-to-day decisions when Child is in his care.
[3] This amount does not include child support payments awarded to the mother, which were $1,000 per month. Those support payments were made directly to Nevada’s State Collection and Disbursement Unit.
[4] Smith filed a post-trial motion pursuant to rule 59(e) of the Utah Rules of Civil Procedure seeking to amend, among other things, the court’s child support award. The district court issued a Memorandum Decision and Order denying the motion. In analyzing the child support issue, the court stated that “[g]ifts are not generally considered income.” This is legally incorrect. As explained above, the Utah Code explicitly defines “gross income” as including “gifts from anyone.” See Utah Code § 78B-12-203(1). To the extent Blake was gifted items, the court must include the value of those gifts when calculating his income.
First, does a parent have the unilateral power simply to “give up” his or her parental rights (and accompanying obligations)? No. The only way to terminate a parent’s parental rights and obligations is by court order after a petition to terminate that parent’s parental rights has been filed and granted.
Can a parent have his/her parental rights terminated? Yes. By court order after a petition to terminate that parent’s parental rights has been filed (either by that parent himself or herself) and granted by the court.
Does the termination of parental rights (not to be confused with merely the desire or intent to have one’s parental rights terminated) also terminate a parent’s obligations to support that child? Yes.
It could mean many things when a parent avoids a legal fight in court for child custody. To identify a few things, it could mean:
that the parent does not want custody of the child or doesn’t care to litigate the matter.
that the parent believes there is no hope that he/she can prevail in the case because of various factors, such as
being unable to afford a competent lawyer
the judge’s, guardian ad litem’s, custody evaluator’s, DCFS’s, and/or law enforcement’s, etc. insurmountable bias against and animus for that party
the opposing party taking a scorched-earth approach to the litigation that includes doing and saying anything to win without regard for truth, decency, and/or the child’s best interest.
that the parent agrees with the other parent’s position on what the child custody award should be.
that the parent is not aware that there is pending child custody litigation involving that parent.
There could be other reason, but these are the most common, in my experience.
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.
There are two kinds of child custody, not just one. Those two different kinds are legal custody and physical custody.
Legal custody is the power of a parent to make decisions for a minor child regarding the child’s health and health care, education, moral and religious upbringing, and other matters pertaining to the child’s general welfare.
Physical custody of a child Is defined as that parent’s right to have the child reside physically with that parent.
You hear about the terms “sole custody” and “joint custody”. Parents can be awarded sole legal or joint legal custody of their children. They can be awarded sole physical or joint physical custody of their children. There is also what is known as a “split custody” award.
Another term that is often used for sole custody is primary custody. That is something of a misnomer.
Sole custody in the context of legal custody would mean that one parent and one parent alone has the power to make decisions for the child. Joint legal custody would mean that both parents share the right to make choices pertaining to the child. That stated, however, courts can and often do award parents the ostensible joint legal custody of their children, and yet give one parent the sole and exclusive right to decide in the event the parents cannot reach agreement. If you ask me, that can’t, in intellectual honesty, be joint legal custody, but I digress.
Sometimes Utah courts will divide legal custody between the parents such that one parent may have the right to make all decisions in a particular area. For example, the court could award the mother the right to make all healthcare decisions and award the father the right to make all education decisions for the children. That sort of arrangement would be known as a “split” legal custody award because neither parent has the sole and exclusive power to make all decisions regarding the child, the parents are not awarded joint legal custody such that they must make decisions jointly, but each parent has some soul and exclusive power to make some decisions, though not all decisions, pertaining to the child’s upbringing.
This is a good question and one that arises frequently in one form or another; a parent either can’t or won’t provide personal care and supervision of the parties’ children his/her scheduled parent-time or custody yet does not want the other parent to care for the children in his/her absence.
Some parents try to pull this stunt because either 1) they are territorial about “my time” with the children and thus can’t stand the idea of the other parent caring for the children during “my time”; or 2) they maliciously want to deny the other parent the opportunity to provide this care for the children. Others try to pull this stunt because they are afraid they will lose the child custody or parent-time they were awarded if they allow the other parent the opportunity to provide care for the children (yet believe that if someone else provides the care that somehow makes retaining custody and parent-time more “secure”). This is wrong, and is something you can take to the court to complain about and seek new court orders to remedy.
But sometimes a parent occasionally wants to leave the children in the care of someone else for perfectly reasonable, even laudable reasons, such as wanting the kids to enjoy time with grandma and grandpa or with the cousins, a sleepover at a friend’s house, and things like that. Clearly, it’s not defensible if it is the rule and not the exception, but there is nothing wrong with this on occasion. Indeed, refusing to be flexible and to allow a parent to do this for your kids is unfair to your kids.
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.
HARRIS, Judge:
¶1 When Daisy Martinez and Fernando Sanchez-Garcia divorced, they both lived in Cache County and, under the terms of their stipulated divorce decree, Martinez was the primary physical custodian of and caregiver for their children. Some two years later, Martinez moved with the children to Layton, about sixty miles away. At that point, Sanchez-Garcia asked for a modification of the custody arrangement, one that would give him primary physical custody of the children in Cache County. After a trial, the court ruled in favor of Sanchez-Garcia, modifying the custody order to make him the primary physical custodian, unless Martinez were to move back to Cache County. Martinez now appeals the court’s modification order, asserting that the court failed to make a finding that circumstances had materially and substantially changed, and that the court failed to take into account her status, up to that point, as primary caregiver. We find merit in Martinez’s arguments, and therefore vacate the court’s modification order and remand for further proceedings.
BACKGROUND
¶2 After five years of marriage, Martinez and Sanchez-Garcia divorced in 2017. Their stipulated divorce decree provided that the parties would share “joint legal custody and joint physical custody” of their two children, and that Martinez would have primary physical custody, with Sanchez-Garcia awarded parent-time that was something less than 50/50. The decree required the parties to “inform each other of any change of address . . . at least thirty (30) days prior to the change, if practicable,” and stated that, if “either party relocate[s] to a residence more than 150 miles away,” then “the relocating party shall provide notice pursuant to” Utah’s relocation statute. See Utah Code § 30-3-37.
¶3 Some two years later, Martinez notified Sanchez-Garcia that she planned to move to Colorado with the children that summer so that she could attend nursing school. She later incorporated her relocation request into a petition to modify the divorce decree, asking the court to give her sole physical custody of the children as necessary to facilitate her move. Sanchez-Garcia responded by filing a counter-petition to modify, asking the court to change the custody provisions of the decree to give him sole physical custody of the children in the event Martinez were to relocate to Colorado.
¶4 After a hearing, a court commissioner determined that relocation to Colorado was not in the best interest of the children, and therefore recommended that Martinez’s request for relocation with the children be denied, and that, if Martinez were to relocate to Colorado, primary physical custody should shift to Sanchez-Garcia. Martinez objected to the commissioner’s recommendation, and asked the district court to appoint a custody evaluator, which the court eventually did.
¶5 After completing his assessment, the custody evaluator announced his recommendation: if Martinez relocated to Colorado, Sanchez-Garcia should be granted sole physical custody of the children, with Martinez receiving parent-time pursuant to Utah’s relocation statute, see Utah Code § 30-3-37, but if Martinez remained in Cache County, the custody arrangement should be “50/50 parent time.”
¶6 Soon after receiving the custody evaluator’s recommendation, Martinez decided not to move to Colorado, and effectively withdrew her petition to modify regarding that potential move (although she did continue to press for an income-related modification of child support obligations). She did not, however, remain in Cache County; instead, she relocated with the children to Layton, Utah, a city located some sixty miles from her previous residence, and she did so without providing any advance notice to Sanchez-Garcia. He objected to Martinez’s move to Layton, and eventually amended his counter-petition to reflect this new development, asking the court to modify the custody order anyway, even though Martinez was not moving to Colorado, because she had relocated to Layton.
¶7 The court held a one-day bench trial to consider Sanchez-Garcia’s counter-petition regarding Martinez’s relocation to Layton, as well as Martinez’s petition regarding amendment of the parties’ child support obligations. The court heard testimony from both parties, as well as from the custody evaluator. In his testimony, Sanchez-Garcia described how his parent-time initially consisted of daily visits but no overnights, but gradually changed to a fairly consistent schedule of one weekday and alternate weekends. He noted that he has “to kind of share [his] parent time” with his extended family, who are very involved in the children’s lives. He expressed frustration that his parent-time was sometimes “covered up with sports and stuff like that.” And he explained that Martinez’s extended family was also very involved in the children’s lives, noting that “70 percent of the time” he was instructed to drop the children off, after parent-time, not at Martinez’s house but at the residence of one of her extended family members. When asked what his preferred parent-time would be, he answered “50/50” like “what [the custody evaluator] said.” But he acknowledged, on cross-examination, that he had never exercised his allotted four weeks of summer parent-time. And when asked if Martinez had offered to keep the children on their Cache County soccer teams, even after her move to Layton, Sanchez-Garcia confirmed that she had but said he declined the offer because his “work schedule was getting kind of crazy” and he would not be able to get the children to practice.
¶8 In her testimony, Martinez stated that the children were happy and doing well in Layton, and that her move to Layton had not changed the amount of parent-time Sanchez-Garcia received. To cut down on travel, Martinez had offered Sanchez-Garcia parent-time every Friday instead of his midweek day,[1] and although he mentioned that he wanted a different midweek day, he never specified which one. When asked why she had wanted to move to Colorado, Martinez explained that she had applied to nursing school there because she had found it was easier to gain admission there than to the nursing programs in Cache County. She stated that, after deciding not to move to Colorado, she moved to Layton instead because there were “more school options” there, and because she had remarried and her new husband “works closer to that area” and would not have to commute “through the canyon in the wintertime.” Martinez also explained that her remarriage had placed her in a better financial situation than when the custody evaluation occurred.
¶9 The custody evaluator testified that “the children are very well established with both parents” and recommended “50/50 parent time” if the parents lived near each other. His recommendation was largely influenced by the children’s “very well established support network” in Cache County, but he admitted that his recommendations about the children not moving were specific to a move to Colorado—more than five hundred miles away—and not to Layton—some sixty miles away. While acknowledging that he would be “speculating,” the custody evaluator “hypothesize[d]” that, if he were asked to assess the propriety of Martinez’s move to Layton (rather than Colorado), he “would entertain and evaluate the same concerns of removing the children from a very strong and well supported network.” But he conceded, on cross-examination, that he had not been asked to assess the propriety of a move to Layton, and that he did not “have a basis to form an opinion” about that specific move, especially since he had “not evaluated the children or interact[ed] with them for more than a year”; he testified that, in order to form an opinion about that particular relocation, he “would want to observe the home arrangements,” “understand the arrangements for care [and] how frequently surrogate care is arranged and by whom,” as well as “understand peer relationships, [and] the continuity of contact with extended family and cousins” in Cache County.
¶10 At the conclusion of the trial, the court issued a ruling from the bench granting Sanchez-Garcia’s petition to modify, “consistent with [the custody evaluator’s] recommendations,” and awarded Sanchez-Garcia primary physical custody of the children so long as Martinez remained in Layton. However, the court ruled that, in the event Martinez moved back to Cache County, custody should be shared equally. Nowhere in its oral ruling did the court discuss whether there had been a substantial and material change of circumstances that would justify reexamining the custody provisions of the decree.
¶11 About a month later, the court issued a written order memorializing its ruling. As in the oral ruling, the court did not discuss whether there had been a substantial and material change in circumstances, and made no findings or conclusions in that regard. It stated that it had “considered the evidence in light of the factors set forth in Utah Code [sections] 30-3-10 and 30-3-10.2,” but it discussed only three of those numerous factors in its ruling. It found that “both parents are well and able parents to provide for the children,” but that their “co-parenting skills [had] been compromised by the inability to communicate appropriately.” It noted that the custody evaluator’s recommendation—that the children not move to Colorado—“was based in large part on the fact that there is a family community here in Cache County” on both sides, and that the children’s “interactions” with extended family members “have been an important part of and support for the children’s lives” and that those interactions “significantly affect[] the children’s best interests.” The court also found that Martinez had “failed with communication,” specifically finding “problematic” her decision not to notify Sanchez-Garcia prior to her relocation to Layton. The court noted, nonspecifically, that it had “relie[d] on the expertise of the custody evaluator in making its orders,” but did not discuss the fact that the evaluator’s recommendations had been made with regard to a potential move to Colorado, and that the evaluator had expressly made no recommendation regarding a move to Layton. And the court did not discuss the fact that Martinez had, up until the court’s ruling, been the children’s primary caregiver for their entire lives.
¶12 Based on these findings, the court concluded that it was in the children’s best interest to be “brought back to reside in Cache County.” The court specified that, in the event that Martinez came back to Cache County with them, “the parties will have parent-time on a one week on, one week off alternating schedule,” but if Martinez remained in Layton, she would enjoy only statutory minimum parent-time.[2]
ISSUES AND STANDARDS OF REVIEW
¶13 Martinez now appeals from the district court’s ruling on Sanchez-Garcia’s counter-petition to modify the parties’ divorce decree, and she raises two issues that require our consideration. First, she contends that the court failed to make any findings regarding whether a substantial and material change in circumstances had occurred. This is a matter we review without deference, because a district “court must make findings on all material issues” when ruling on a modification petition, and a court’s “failure to delineate what circumstances have changed and why these changes support the modification . . . constitutes reversible error unless the facts in the record are clear, uncontroverted and only support the judgment.” Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178 (quotation simplified), cert. denied, 106 P.3d 743 (Utah 2005).
¶14 Second, Martinez challenges the court’s custody determination, asserting that the court failed to consider many of the relevant factors, including the fact that she had been the children’s primary caregiver. “We review the district court’s custody and parent-time determination for abuse of discretion.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 17, 509 P.3d 806 (quotation simplified).
ANALYSIS
¶15 “Under Utah law, petitions to modify custody orders are governed by a two-part test: ‘A court order modifying . . . an existing joint legal custody or joint physical custody order shall contain written findings that: (i) a material and substantial change of circumstance has occurred; and (ii) a modification . . . would be an improvement for and in the best interest of the child.’” Peeples v. Peeples, 2019 UT App 207, ¶ 13, 456 P.3d 1159 (emphasis added) (quoting Utah Code § 30-3-10.4(2)(b)). Martinez raises a challenge with regard to each part of this two-part test.
¶16 First, she asserts that the district court did not make any findings—written or oral—regarding whether “changes in the circumstances upon which the previous award was based” have occurred that “are sufficiently substantial and material to justify reopening the question of custody.” Id. ¶ 15 (quotation simplified). Martinez’s assertion is correct: we have examined the court’s oral and written rulings, and we are unable to find any discussion of whether a change in circumstances had occurred.[3] This was error; a finding of changed circumstances is a “threshold requirement for modifying a divorce decree,” Larson v. Larson, 888 P.2d 719, 722 n.1 (Utah Ct. App. 1994), and “only if a substantial change of circumstances is found should the district court consider whether a change of custody is appropriate,” Peeples, 2019 UT App 207, ¶ 13 (quotation simplified); see also Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”).
¶17 Sanchez-Garcia acknowledges the lack of findings regarding changed circumstances, but nevertheless defends the court’s ruling on two bases, neither of which we find persuasive. First, he asserts that it is “clear and uncontroverted” in the record that a substantial and material change of circumstances occurred, and he points to Martinez’s “sudden relocation to Layton,” which necessitated a change in schools for the children as well as a distancing from their “extensive support network” in Cache County. We recognize that Martinez’s move to Layton changed the landscape, but it is not at all obvious to us that this move resulted in the sort of substantial and material change that would justify a second look at the custody arrangement. Martinez’s move was well inside the 150-mile threshold that triggers the relocation statute. See Utah Code § 30-3-37(1). Moves within that threshold, even if they involve the crossing of a county line, do not, by themselves, necessarily indicate that a substantial and material change has taken place. Martinez presented evidence— that the court did not discuss—that the children were doing well in Layton and that her move to Layton did not result in any loss of parent-time for Sanchez-Garcia; that is, Sanchez-Garcia was enjoying just as much parent-time after Martinez’s move to Layton as he had been before. Cf. Erickson v. Erickson, 2018 UT App 184, ¶ 18, 437 P.3d 370 (holding, on the facts of that case, that a “change in the pick-up times without a change in the number of overnights” does not amount to a material and substantial change in circumstances “that warrants a change in custody”). And the fact that the children changed schools is not necessarily something that constitutes a substantial change in circumstances; a hypothetical five-mile move across town within Cache County may also have necessitated a change in schools, yet it is unlikely that such a move would, in this context, have been considered a substantial and material change in circumstances. And evidence was presented indicating that the children, even after the move to Layton, continued to enjoy significant contact with extended family on both sides. We do not foreclose the possibility that a court, under circumstances similar to these, could make a supported finding that things had changed enough to justify a second look at the custody order. But such a conclusion is far from obvious, and we expect a district court to engage with this issue and explain why it believes that to be the case. On this record, we cannot excuse the lack of findings on the basis that a substantial and material change is clear from the facts.
¶18 Next, Sanchez-Garcia claims that Martinez invited any error in this regard, because she filed her own petition to modify and therein asserted that there had been a substantial and material change in circumstances. But her petition was filed with regard to a potential move to Colorado, and was in that regard effectively withdrawn prior to trial.[4] A move to Colorado—far more than 150 miles from Cache County—would unquestionably be a substantial and material change in circumstances. But it does not follow, from her unremarkable assertion that a move to Colorado would be a substantial and material change, that she was also admitting that a move to Layton would likewise qualify as such. Indeed, in her answer to Sanchez-Garcia’s amended counter-petition to modify, Martinez expressly denied Sanchez-Garcia’s allegation that her move to Layton constituted a substantial and material change in circumstances. Martinez therefore did not invite the court’s error in failing to engage with the first part of the modification test.
¶19 Thus, we find merit in Martinez’s first challenge, and conclude that, on this issue alone, we must vacate the district court’s modified decree and remand for further proceedings so that the court can have an opportunity to engage with this issue and explain why Martinez’s move to Layton constituted the sort of substantial and material change that necessitates a reopening of the custody provisions of the decree.[5]
¶20 We recognize that should the court on remand determine that a substantial change of circumstances has not occurred, no further analysis will be required. However, should the district court conclude that a substantial change in circumstances has occurred, the court’s analysis regarding custody will also require more thorough treatment; indeed, were the court’s analysis regarding custody the only matter at issue, we would vacate and remand that determination as well. Therefore, we offer the following guidance should the issue arise following remand. SeeState v. Garcia-Lorenzo, 2022 UT App 101, ¶ 58, 517 P.3d 424 (electing to consider additional raised and briefed issues, even though not necessary to the outcome of the appeal, “in an effort to offer guidance that might be useful on remand, where these issues are likely to arise again” (quotation simplified)), cert. granted, 525 P.3d 1263 (Utah 2022).
¶21 After a court has determined that a substantial and material change in circumstances has occurred, it must then proceed to analyze whether “a modification . . . would be an improvement for and in the best interest of the child.” See Utah Code § 30-3-10.4(2)(b). In so doing, the court “shall, in addition to other factors the court considers relevant, consider the factors outlined in Section 30-3-10 and Subsection 30-3-10.2(2).” Id. § 303-10.4(2)(a) (emphasis added). Section 30-3-10 lists seventeen factors for consideration, before authorizing courts to consider “any other factor the court finds relevant.” Id. § 30-3-10(2). And section 30-3-10.2(2)—applicable when the court is considering joint custody—sets forth another eight specific factors for consideration, before also authorizing consideration of “any other factor the court finds relevant.” Id. § 30-3-10.2(2). Thus, courts in this situation are statutorily required to “consider,” at least in some form, twenty-five enumerated factors, as well as “any other” relevant factor.
¶22 Of course, not all of these factors “are on equal footing,” and a district court “generally has discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 20, 509 P.3d 806 (quotation simplified). Some factors might not be relevant at all to the family’s situation, and others might be only tangentially relevant or will weigh equally in favor of both parents.[6]
¶23 Other factors, however, are of particular importance when considering a change in custody. For instance, “[a]t the critically important end of the spectrum, when the child is thriving, happy, and well-adjusted, lies continuity of placement.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491; see also Larson v. Larson, 888 P.2d 719, 722–23 (Utah Ct. App. 1994) (citing eight earlier Utah cases, and stating that “a factor of considerable importance in determining the best interest of children is the maintenance of continuity in their lives, and removing children from their existing custodial placement undercuts that policy”). Stated another way, when a court is “considering competing claims to custody between fit parents under the ‘best interests of the child’ standard, considerable weight should be given to which parent has been the child’s primary caregiver,” Davis v. Davis, 749 P.2d 647, 648 (Utah 1988), and “[e]xisting arrangements in which the child has thrived should be disturbed only if the court finds compelling circumstances,” Hudema, 1999 UT App 290, ¶ 26. The importance of this factor is further highlighted by the fact that applicable statutes mention it twice: not only does section 30-3-10 list it as one of the seventeen general custody factors, see Utah Code § 30-3-10(2)(m) (listing as a factor “who has been the primary caretaker of the child”), but the modification statute specifies that, in considering whether to modify a custody order, the court “shall give substantial weight to the existing . . . joint physical custody order when the child is thriving, happy, and well-adjusted,” id. § 30-3-10.4(2)(c).
¶24 In its custody analysis, the district court discussed only three of the twenty-five applicable statutory factors. The court began by finding that “both parents are well and able parents to provide for the children,” an apparent allusion to one of the general custody factors. See id. § 30-3-10(2)(c) (listing as a factor each “parent’s capacity and willingness to function as a parent”). It then discussed, at some length, the important relationships the children had with extended family members on both sides in Cache County. See id. § 30-3-10(2)(l) (listing as a factor a child’s “interaction and relationship with . . . extended family members”). The court also discussed Martinez’s failure to notify Sanchez-Garcia of her move to Layton, and viewed that as a failure of communication. See id. § 30-3-10.2(2)(c)(i) (listing as a factor each parent’s “co-parenting skills, including” the parent’s “ability to appropriately communicate with the other parent”). But that was the sum total of the court’s analysis; significantly, the court did not undertake any discussion of “who has been the primary caretaker of the child,” see id. § 30-3-10(2)(m), a factor that is “[a]t the critically important end of the spectrum,” Hudema, 1999 UT App 290, ¶ 26, and therefore entitled to “considerable weight,” Davis, 749 P.2d at 648; see also Utah Code § 30-3-10.4(2)(c) (requiring courts considering modification to give “substantial weight” to existing joint custody arrangements in which “the child is thriving, happy, and well-adjusted”).
¶25 At trial in this case, Martinez emphasized the “primary caregiver” factor, and put on evidence and made argument about that factor, asserting that she had always been the primary caregiver and that the children were doing well in her care, the move to Layton notwithstanding. Indeed, the custody evaluator testified that, in his view, “the children are very well established with both parents.” We acknowledge that “[d]etermining which
factors the court must address in a given case, and to what degree, presents a tricky task,” and that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” See Twitchell, 2022 UT App 49, ¶ 21 (quotation simplified). But “where significant evidence concerning a particular factor is presented to the district court,” especially where that factor is a critically important one, “findings that omit all discussion of that evidence” and of that factor “must be deemed inadequate.” Id.
¶26 Again, we do not foreclose the possibility that a change of custody could be warranted here after a more fulsome analysis of the relevant custody factors, and our opinion should not be read as placing a thumb on the scale in either direction. But a more complete analysis is required here, in which the court should—as required by statute, see Utah Code § 30-3-10.4(2)(a)—“consider” the relevant factors, at least in some form, especially the ones the parties emphasize. In particular, given the court’s heavy reliance on the importance of the children’s relationships with extended family in Cache County, the court should engage with our previous case law holding that, “[w]hile the close proximity of . . . extended family is an appropriate factor for the court to consider, this, by itself, is insufficient to disturb a previously determined custody arrangement in which the children are happy and well-adjusted.” Larson, 888 P.2d at 726.
CONCLUSION
¶27 We find merit in Martinez’s two arguments, and therefore vacate the court’s modification order and remand for further proceedings in which the court should analyze at least the first of these issues, and possibly the second, anew. In so doing, the court should expressly consider whether a substantial and material change of circumstances has occurred and, if it concludes that such a change has in fact occurred, the court should then consider, at least in some form, all the statutory factors relevant to custody modification, including the “primary caregiver” factor.
¶28 We also note that the court’s renewed analysis, on remand, should be conducted “in present-tense fashion, as of the date of the hearing or trial, and should not only take into account the items discussed in this opinion but, in addition, should take into account, in some form, any material developments with regard to [the children] that have occurred since the last trial,” see In re J.J.W., 2022 UT App 116, ¶ 38, 520 P.3d 38, including (if applicable) whether Martinez has since moved back to Cache County.
[1] At the time, the children’s school was asynchronous on Fridays, due to continuing COVID-19 restrictions.
[2] In connection with Martinez’s request to amend child support, the court also made findings regarding the parties’ respective incomes, and on that basis (as well as the modified custody orders) modified the parties’ child support obligations. The court’s findings regarding the parties’ respective incomes are not at issue in this appeal.
[3] It may not be sufficient for a court to make an oral—but not a written—ruling in this regard, because the governing statute requires courts to make “written findings” on both parts of the modification test. See Utah Code § 30-3-10.4(2)(b); see also Hutchison v. Hutchison, 649 P.2d 38, 42 (Utah 1982) (stating that a requirement of written findings allows an appellate court “to be in a position to review the propriety of the trial court’s order,” and this “requirement of written findings applies with even greater force to orders awarding or modifying the custody of a child” (quotation simplified)). But in this case, we need not consider whether an oral finding, standing alone, would be sufficient, because the court made neither an oral nor a written finding regarding changed circumstances.
[4] Her only affirmative issue remaining for trial was an assertion that the parties’ incomes had changed significantly enough to justify amendment to the amount of child support ordered.
[5] In connection with this inquiry, the court may need to concern itself with the question of whether the decree subject to modification was the product of litigation or stipulation or some combination of the two. In some cases, “a lesser showing of changed circumstances may support modifying a stipulated award than would be required to modify an adjudicated award.” See Peeples v. Peeples, 2019 UT App 207, ¶ 15, 456 P.3d 1159 (quotation simplified). But the “adjudicated/stipulated dichotomy” is not “entirely binary,” and “in assessing how much ‘lesser’ a showing might be required to satisfy the change-in-circumstances requirement, . . . courts should examine the origin of the order in question and analyze the extent to which the order—even if stipulated—reflects the result of robustly contested litigation aimed at ascertaining the best interest of the child.” See id. ¶ 17 (quotation simplified).
[6] Even with factors not relevant to the situation or factors that do not move the needle one way or the other, a court is well-served to at least mention those factors in its ruling and briefly indicate that it deems them irrelevant or of equal weight for each party. By mentioning them, even if only to say that they are irrelevant, a court ensures that the parties—and, significantly, a reviewing court—will be able to tell that the court at least “consider[ed]” them. See Utah Code § 30-3-10.4(2)(a).
We have joint custody in Nevada. I’m in California now. Is it wrong to ask them to take my child to me because of my location?
Do mean to ask, “Is it wrong to ask the other parent to do all traveling back and forth between the parents’ respective homes?” My answer is, unless there are exceptional circumstances that dictate otherwise, “no.” Not just “no,” but “no way!”
Making one parent pick up and drop off the child for every custody or parent-time is a tremendous burden on that parent’s time, money, and vehicle.
There are better, fairer ways to handle the situation, such as:
having both parents drive to a mid-point between their respective residences for exchanges
having one parent pick up and drop off for one exchange, then having the other parent pick up and drop off for the next exchange, and doing that for every other exchange
If one parent bears the burden of all the traveling back and forth between the parents’ respective homes, then the other should compensate him/her for half of that parent’s fuel, meals, and vehicle wear and tear expenses. If the distance is long enough that it requires an overnight stay at a hotel, that expense should be included too.
What can I legally do if my child’s mother picks up our child in an Uber without a car seat? She is 5 years old, about 50 lbs. She is also the custodial parent with full custody rights, so she feels she can do anything she wants. Can I call the cops?
I’m old enough to remember when it was not illegal to wear a seatbelt. I’m old enough to remember when it was not illegal to permit a child to ride in a car without a seatbelt. I remember when there were no laws that children under a certain weight or height must ride in car seats when riding in cars. Most jurisdictions now have laws that require children of a certain age, weight, or height be strapped into a car seat when riding in a car.
So, the first thing you will need to do is find out whether it is illegal for your ex-wife to have your five-year-old, 50 pound child ride in a car without a car seat. You’ve mentioned that your ex-wife will often have your child picked up by Uber (a ridesharing service), and so you will want to ensure that even if there are laws that require a child to ride in a car seat when writing in a car, there are no exceptions for ridesharing services, taxicabs, buses, etc.
If, after conducting your research, you learn that it is illegal for your ex-wife to have your child ride in a car or when using a ridesharing service without having the child strapped into a car seat, then you would be well within your rights to report this to the police. just because you could do this, however, does not mean that you should, at least without first notifying your ex-wife that what she is doing is illegal and places your child in danger, and that if she refuses to comply with the law you will then report her to the police and perhaps even take the matter up with the court to get an order that requires her to secure the child in a car seat when traveling by car under circumstances when the law requires a car seat be utilized.
Is there any question whether the court would benefit from hearing testimony from these kids? Even if, arguendo, the court were to discover these kids are liars?
I generally wouldn’t recommend trying to get the assistance of the court to remedy this problem. The legal system is not designed to address this problem well, if at all. And even when it can do something worthwhile, the legal system does not generally address this problem well, if at all.
Let’s assume that if you were just given the opportunity to prove that your ex-spouse (and I’m going to approach this question as applying to a manipulative father OR mother) is manipulating your children, you could prove it in spades. With that in mind:
If you ask the judge to interview the kids, odds are that the court will refuse to do so, coming up with all kinds of lame excuses as to why the judge “can’t” or “shouldn’t”. Most of these excuses stem from a belief that a judge interviewing the child will “traumatize” the children, yet these same judges seem to see nothing traumatizing about a guardian ad litem, custody evaluator, social worker, counselor, or therapist interviewing the children.
But even if the judge were to agree to interview the children, by the time the court gets around to conducting the interviews, weeks—even months—may have passed from the day you made the request of the judge to interview the children. In that time in between, the manipulative parent could coach, bribe, and/or coerce the children into saying to the judge anything but the truth. And if the manipulative parent is the one requesting that the judge interview the children, the coaching, bribing, and/or coercion of the children could have been going on for weeks, months, even years before. These are often two of the excuses judges will cite as their basis for refusing to interview children. There is some merit to these excuses, but the solution is not refusing to interview the children, the solution lies in mitigating child manipulation.
But even if you could somehow overcome the first two previously described obstacles and the judge eventually interviews the children, you may find the judge’s reception and analysis of the children’s testimony to be rather obtuse. Not always, but more often than you’d expect. Responses like, “The children tell me that Mom/Dad is regularly disparaging and telling the children lies about the other parent when the children are with Mom/Dad, but now that I’m aware of it, I trust that Mom/Dad will stop doing it, so I’m not going to make any changes” or “The children tell me that Mom/Dad is regularly disparaging and telling the children lies about the other parent when the children are with Mom/Dad, so I’m going to order Mom/Dad to stop doing it and take a parenting class. That ought to fix it.” I’m not sure judges who do this kind of thing believe it themselves but just do it to create the impression the matter has been addressed and “dealt with”.
If you are a parent with an ex-spouse who manipulates the children in an effort to alienate them from you, I have yet to find a quick, simple, easy, reliable way to combat and overcome parental alienation. If I did find it, I’d be a multimillionaire. There are many people out there who will tell you how to deal with and defeat alienation. A lot of this advice is appealing psychobabble. A lot of this advice is pandering to your fears, heartbreak, and anger. There must be some good advice out there as well. There are some common sense actions to be taken. There is value in meeting with a truly competent child psychologist to better understand the dynamics of parental alienation. But other than that, I’d be lying if I told you I could tell the difference between the wheat and the chaff.
What I can tell is that trying to beat parental alienation through the courts is, for the most part, a major waste of time, money, emotional energy, and effort. Sometimes the alienator’s behavior is so over the top that it can easily be identified and there are some remedies that the court can and should/must take in response. Otherwise, the best things you can do to mitigate and overcome parental alienation are those things within your legal, lawful, moral, and ethical control.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If the case goes to trial: the judge. However, in Utah, the jurisdiction where I practice (which is the case in most other jurisdictions too), the parents, children, and lawyers all have the opportunity to provide their input in an effort to influence, though not control, the judge’s decision.
If the parents settle the case out of court: the parents. However, the parents’ settlement agreement is subject to the judge’s approval, but judges approve settlement agreements almost all the time, as long as the settlement complies with the laws, isn’t inequitable, and can reasonably be said to subserve the best interest of the children (if the divorcing couple has children).
The lawyers have no control and only as much influence as their clients will permit them to exert and as much as the judge finds persuasive.
The children, like the parents and the lawyers too, have no control over the child custody award and generally have the least amount of influence over the decision. One of the shameful reasons for this is that most courts don’t want to hear from the children. They’ll tell you one reason is to “spare the children being put in the middle of a dispute between their parents,” but that’s not the real (or perhaps it would be more accurate to state it’s not the ‘main”) reason; kids already know they’re in the middle, so the courts can’t spare them. The real reasons are that many courts think kids are often bad witnesses because they are too young and inarticulate to testify intelligently and coherently on the subject of the custody award. And often courts won’t let children testify, which results in courts having as much discretion as possible to make the custody award they desire to make, free of having to take into consideration any pesky testimony of a child.
Some will argue that children “need someone to stand in their shoes and give them a voice” in the child custody dispute. Perhaps, if the child’s an infant who doesn’t yet wear his/her own shoes and can’t talk; otherwise, kids can stand on their own and don’t need someone to speak for them when they have their own voice and are willing to talk. But courts inexplicably (I mean it—inexplicably—believe it’s better to appoint a middleman to provide second-hand, hearsay, summary “recommendations” to the court regarding the child custody award. This middleman is an attorney known as a guardian ad litem or GAL. I really would like to say that GALs add real evidentiary value to a case. They don’t. Milton Friedman said, “One of the great mistakes is to judge policies and programs by their intentions rather than their results” Just as many people believe that seat belt laws save lives (when it’s actually the use of seat belts, not the seat belt law itself, that saves lives), those who believe that a GAL will act in the best interest of a child believe—mistakenly—that a GAL will in fact act in the best interest of a child merely by virtue of that being the intention of appointing a GAL. GALs generally do not fulfill their intended mission. In some cases, they do a child more harm than good. This is why my experience with GALs has generally been a negative one (even when the GAL sides with my client).
That does not bode well for you, if in fact the child will be in the courtroom at the same time you and the judge assigned to your case are in the courtroom (although it is not a common occurrence for children to be in the courtroom with a parent during child custody proceedings).
If a child is 3 years old and doesn’t recognize his/her parent, that raises the question of why?
Even if your explanation is “because the other parent hid/kept the child away from me!” and the explanation is in fact true, that’s a tough sell. Unless you have extremely good evidence proof to back your explanation, the court is likely to treat such a claim with skepticism (and can you blame it?). Be prepared to show that you bent over backward and moved heaven and earth trying to find, stay in contact with, and to care for your child (easier said than done, I get it, but that’s the way the system works); otherwise, the court is likely to conclude you are a flaky, absentee parent.
And if you are found to be a flaky, absentee parent, your odds of winning sole custody are slim to none, and your odds of winning joint custody aren’t much better.
Thank you for your question, and forgive me for approaching this question in a way that may not answer your question as directly as it could be; I hope you will find my answer enlightening just the same.
If my purely selfish desires regarding particular controversies that I’d like to handle as a lawyer wouldn’t affect real people’s lives, then I’d love, as a divorce and family law attorney, to represent one of the parents in a case where 1) neither parent wants sole custody of the children and 2) each parent wants to foist custody of the children on the other.
Why?
Because it would shine a light on the moral and intellectual bankruptcy of the belief that it is somehow wrong to award joint equal physical custody of children to two equally fit and loving parents who both desire to be as involved in their children’s lives as possible.[1]
How?
Because the court would find itself in the unusual position of dealing with parents fighting to get as little time with the children as possible and thus find itself having to formulate and make arguments forboth parents exercising custody of their children as much as possible (instead of trying to justify an unequal custody award where equal custody could clearly work or at least merit a try).
The cognitive dissonance would be glorious—absolutely glorious—to behold. The infirmity of the “arguments” for denying two fit, loving parents equal custody would be laid bare for all to see.
Not every parent is fit to exercise joint or sole physical custody of his/her child, but parents who are 1) fit and loving; 2) desirous of ensuring their children are reared as much as possible by both of their parents; and 3) live in close enough proximity to each other to make joint equal physical custody not merely feasible but beneficial to the minor children: A) should have their parental rights upheld to the fullest extent possible by awarding joint equal physical custody because B) the “best parent” for the children is both parents.
The idea that we presumptively divide marital assets equally in divorce because that is presumptively fair is the same reason we should presumptively award joint equal physical child custody. If the presumption of dividing marital assets equally is rebutted by showing, for example, that a spouse materially dissipated marital assets or wrongfully diminished their value, then clearly an equal division of the assets would not be fair. Likewise, if the presumption of awarding equal custody is rebutted by showing that it would be deleterious to the children in some material way, then an equal custody award would not be fair to the children.
Yet the laws of most states in the U.S.A. do not adopt a presumption of joint equal physical custody (but I should note that currently the legislative trend is toward adopting presumption of equal custody), and even among those states that do, many judges in those states disfavor equal physical custody awards.
For all the good sense equal physical custody makes, it is surprisingly (scandalously) difficult to obtain an equal physical custody award.
———-
[1] To quote the Core Principles of the National Parents Organization (sharedparenting.org):
Shared parenting protects children’s best interests and the loving bonds children share with both parents after separation or divorce;
Equality between genders has been extended to every corner of American society, with one huge exception: Family Courts and the related agencies; and
The Supreme Court of the United States has found that “the interest of parents in the care, custody, and control of their children… is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
You’ve picked a good topic of discussion, but your question is poorly phrased.
Your claim that only one parent can properly raise children after a marital breakup is false.
Not every divorced parent is capable of exercising joint physical custody or equal physical custody of children.
But when a child has two loving, fit parents who live within the same neighborhood and school district as their child and who are capable of providing personal care and supervision of the child, the evidence is clear that that child will likely do better in the joint or equal physical custody of both parents than if that same child were reared in the sole or primary care of just one of the child’s two parents.
What is the likelihood of reverting to 50/50 custody when the parents live in the same neighborhood? Mom still cares for the child over 80%
Your question states in part, “What is the likelihood of reverting to 50-50 custody.” Your use of the word “reverting” implies that at one time in the past you and the other parent exercised joint equal (50/50) custody of the child. It appears that at some point one or both of you moved away from each other such that 50/50 custody could not be practicably exercised anymore, at which point sole or primary custody of the child was awarded to the mother.
It appears that either the mother has moved into your neighborhood or you have moved into the mother’s neighborhood, such that 50/50 custody can now be practicably exercised again.
Unless you have an unusual case in which the court does not allow the parents to determine what the custody and parent time schedules are, you and the mother could agreed to resume a 50/50 custody and parent time schedule, if you wanted. If you want to do that, it would be wise to write up a new agreement indicating that you and the mother agree to exercise 50/50 custody and parent time and have that agreement made the new order of the court.
If the mother refuses to agree to resume a 50/50 custody and parent time schedule, the question then becomes whether the court would grant your petition to revert back to a 50/50 schedule and resume that schedule for you and the child.
I cannot speak for all jurisdictions and the laws that apply in each of them, but I can tell you that in the state of Utah, where I practice divorce and family law, simply moving closer to the other parent, so that joint equal (50/50) custody could be practicably unsuccessfully exercised, is usually not enough of a reason to modify the child custody and parent time order:
Huish v. Munro, 191 P.3d 1242 (2008 UT App 283):
To demonstrate a substantial change of circumstances . . . the asserted change must, therefore, have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship.
Thorpe v. Jensen, 817 P.2d 387, 391 (Utah Ct.App. 1991):
[The] need for caution was emphasized in Kramer v. Kramer, 738 P.2d 624 (Utah 1987), where the court noted that “a central premise of our recent child custody cases is the view that stable custody arrangements are of critical importance to the child’s proper development.” Id. at 626 (citations omitted). The “change of circumstances” threshold announced in Hogge and Becker is elevated to discourage frequent petitions for modification of custody decrees. The Hogge test was designed to “protect the custodial parent from harassment by repeated litigation and [to] protect the child from ‘ping-pong’ custody awards.”Hogge v. Hogge, 649 P.2d at 53-54. This policy is soundly premised.
But there is this (from the case of Miller v. Miller, 480 P.3d 341 (2020 UT App 171):
[I]f a court determines a petition as a whole clearly does not allege a change in circumstances that has any relation to the parenting skills or custodial relationship or the circumstances on which the custodial arrangement was based, it may dismiss the petition for failure to state a claim. SeeO’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; cf. Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that, to meet the materiality requirement, the change in circumstances must “have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship” or “appear on their face to be the kind of circumstances on which an earlier custody decision was based”).
Utah Family Law, LC | divorceutah.com | 801-466-9277
The question is: I’m a stay at home mom, my BD is always working unreliable and inconsistent hours, he wants 50% custody of our son. Will he be granted 50%? His hours always vary from 4pm 7pm 9pm even 2am at times.
Understand this: it’s not a matter of what you know to be the facts, it’s whether 1) you can prove the facts; and 2) persuade the court that these facts warrant or require that the court rule in your favor and as you want.
The court cannot know what you know unless you can prove it to the court itself or persuade the court to believe what you say is true.
Now if the father’s work schedule is not conducive to an equal physical custody schedule and you can prove that, the court will likely rule against a joint physical custody award. If you believe that all you have to do is tell the court, essentially, “The father’s work schedule is not conducive to an equal custody award,” your odds of succeeding on this issue are slim.*
*But because you are the woman, there is an inexcusable possibility that the court might purport to find as a matter of “fact” that what you say is true—not because you proved it (you obviously didn’t prove it objectively or by a preponderance of the evidence) but because the court simply does not want to award equal custody, does not intend to award equal physical custody, and will look for any hooks upon which to hang that hat.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Am I, as an 11-year-old, allowed to go to court in a situation where my parents are divorced to see if I can get my dad to have full custody of me even though my mom doesn’t abuse me?
What actually happens when a child wants to be heard on the subject of his/her desires regarding the child custody award?
Great questions. I can’t speak for all jurisdictions, but I can tell you 1) what the law is for the state of Utah; and 2) what (in my experience) actually happens when a child wants to be heard on the subject of his/her desires regarding the child custody award.
The law for the state of Utah. A child can testify as to the child’s preferences regarding the child custody award, if the court allows the child to testify:
(a) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony.
(b)
(i) The court may inquire of the child’s and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise.
(ii) The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.
(c)
(i) If an interview with a child is conducted by the court pursuant to Subsection (5)(b), the interview shall be conducted by the judge in camera.
(ii) The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.
So what do the words of § 30-3-10 mean? How does § 30-3-10 work (or how should it work)? Get ready to be upset.
§ 30-3-10 provides that a child can testify, but only under circumstances that most Utah courts construe so restrictively as to make it all but impossible for a child to testify. How?
Most Utah courts will say (I know because I am one of the few attorneys who thinks children who are smart enough and emotionally tough enough to testify intelligibly should be heard on the subject of the child custody award) that 1) the “extenuating circumstances that would necessitate the testimony of the child be heard” do not exist (and will, if the court has anything to say about it, essentially never exist under any circumstances); and 2) there is always another “reasonable method” to present the child’s testimony without actually presenting the child’s testimony directly from the child’s mouth to the judge’s ear. Generally, courts in Utah will bend over backward to avoid hearing from the child directly. And the “other reasonable method” means ensuring the questions posed to the child on the subject of child custody are not recorded, that the child’s purported answers are not recorded, that the child’s testimony is filtered through a third party, such as a guardian ad litem and/or a custody evaluator.
If a court in Utah has ever found “that an interview with a child is the only method to ascertain the child’s desires regarding custody,” I am not aware of such a case. What is so frustrating to me is why would such a law exist? Why isn’t the law just the opposite, i.e., “Unless the evidence shows that the judge interviewing the child will not ascertain or at least help the court to ascertain the child’s desires regarding custody, the court shall interview the child to ascertain the child’s desires regarding custody.”
Utah Family Law, LC | divorceutah.com | 801-466-9277
It means that the child custody order is a temporary, as opposed to a permanent and final, order of the court.
Why would a court enter a temporary child custody order? For obvious reasons and necessity. If to parents are fighting over custody of a child and what the ultimate child custody and parent time order will be, it will likely take a year or two before that case goes to trial. The child needs to be taken care of during that period (known as the pendente lite period in the litigation; pendent lite literally means “while the litigation is pending”), and so the court will issue temporary orders as to how much time the child spends with each parent until the final child custody order is made.
These temporary orders are not to be intended have a “prejudicial” effect on the outcome of the final child custody award (but that is rarely the case).
“Prejudicial” in a legal sense means a preconceived opinion that is not based on reason or actual experience, harm or injury that results or may result from some action or judgment. As you can imagine, if the existence or purported success of a temporary order was cited by the court as evidence that the temporary order must become the permanent order of the court, then the so-called “temporary” order is anything but. To assert that a temporary custody order has proven itself to be better than any other possible custody order on the grounds that it has been in place to the exclusion of any other possible custody arrangement would be an example of giving the temporary order prejudicial impact and effect.
And now to address the elephant in the room:
Courts routinely claim that temporary child custody orders cannot and will not have a prejudicial effect on the final child custody order. That is simply not true.
Now clearly, if a court found the temporary orders to be disastrous for the child, and the court will need to impose a different permanent custody order for the sake of the child’s welfare and the sake of the court’s legitimacy.
But what about a temporary order that isn’t best for the child but isn’t manifestly catastrophic? How can anyone believe a judge who says that he or she isn’t looking to the track record of that sub-optimal, so-called temporary order when determining what the permanent child custody order should be?
It takes an extremely intellectually disciplined judge to disregard that temporary orders track record as evidence in favor of that temporary custody arrangement.
Instead, however, most judges will take the path of least resistance and adopt as the permanent order a temporary order that hasn’t been a patent failure, and then cite in support of that decision the fact that the parent opposing that schedule has “failed to produce sufficient evidence” to rebut the proposition that the so-called temporary order is in the best interest of the child. Judges will deny that they do this, but it’s obvious that they do. Do you see the problem with this approach?
When the court:
imposes one and only one custody schedule during the pendente lite phase of the case,
claims that this one and only one schedule will not have a prejudicial effect on the ultimate permanent child custody order,
refuses to implement any other proposed schedule to test and evaluate it against the other schedule,
bars the other parent from implementing his/her proposed custody schedule in any kind of real life/real-time setting during the pendente lite phase,
then cites to the other parent having failed to produce sufficient fact(s) that his/her proposed custody schedule better serves the best interest of the child,
and cites to the track record of the so-called non-prejudicial temporary order as fact(s) in support of the argument for imposing it as a permanent order,
the so-called non-prejudicial temporary order is anything but.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Teenager Child (16) refuses to see me after spending a month with my ex. I have 50% custody. What can I do about it? I’m a stricter parent unlike my ex who lets him play computer games all day and night.
Each jurisdiction may have different laws and rules governing a situation like yours, but I will answer your question as it applies to the state of Utah in my experience as a divorce and family lawyer.
Many people believe that at a certain age a minor child has the “right” in Utah to choose with which parent he/she will reside. Not true. Unless a court orders that a minor child has such a right, no such legal right independently exists.
But then there’s life in the real world, which shows us just how far a court’s power to enforce a child custody award order reaches. As a practical matter, if a child is big and strong and strong-willed enough to refuse to comply with the child custody order, there is little a court can do or will do to compel a child to comply.
Thus, trying to enforce a child custody and parent-time award by enlisting the help of the court is usually fruitless.
It’s maddening when a child is too young and immature to understand that living with the irresponsible, excessively permissive, and/or absentee parent is doing that child more harm than good. Unfortunately, unless the child does something or some things bad enough to land him/her in juvenile detention, a court can’t really force the child to live anywhere.
As I stated in answer to a question similar to yours: some courts try to get creative and impose sanctions on a noncompliant child by essentially ordering them “grounded”, but again, if the child chooses not to comply, there is little the court can do or feels is wise to do to the child. I’ve seen a court try to get a child to comply by ordering her barred from participating in her beloved dance classes and driver education courses (so that she can’t get her driver license unless she lives with the court ordered custodial parent) as long as the child refused to live with the court-ordered custodial parent. In that case, however, the child outlasted the court, i.e., she kept living with the noncustodial parent and stopped attending dance and driver’s ed. classes. Then the court found itself in the awkward position of preventing the child from getting exercise and driving to and from her job and other worthwhile, even necessary activities, so the court relented (both in the best interest of the child and to save face). This is a lesson that most courts learn when they try to use the coercive powers of the court against children to enforce child custody orders.
Besides, even if you could force a child to live with you or spend time with you as court-ordered, a child who is forced to do much of anything is only going to resent it and resent you for making him/her do it.
The only viable option you have is to be the most effective parent you can. That doesn’t mean abandoning good parental practices, but it may mean adjusting your approach from a “good” and “reasonable” one to an approach that entails necessary parental care and supervision that fosters love and affection, an approach that still holds children accountable, without estranging them.
Utah Family Law, LC | divorceutah.com | 801-466-9277\