I think I know why you think it’s weird. Why have the children live with one parent instead both parents on an equal custody basis? In other words, “I’ll bear the financial costs of taking care of the children when they are with me, and you bear the financial costs of taking care of the children when they are with you.” That makes, sense. But there is more than one way to view this situation. Most jurisdictions in the U.S.A. see it this way:
If the children spend more time in the care and custody of one parent than the other, then that parent will bear greater financial burden in the form of having to pay for at least the food the children eat, the laundry detergent they use in the washing of their clothes, the extra utilities expenses they represent (using more water and electricity than if the parent lived alone) and the soap, shampoo, and toilet paper the children use.
In Utah (where I practice divorce and family law), child support is intended to cover not only these expenses of the children, but their clothing and bedding, school fees, and extracurricular activities too.
This is why most jurisdictions order the parent who exercises less care and custody than the other parent (the noncustodial parent) to pay what is called “child support” to the custodial parent.
But what if the parents share equal physical custody of the children? Does that mean that neither parent will pay child support to the other? Not necessarily.
In Utah, even if the parents were awarded equal custody of the children, one parent can end up still paying child support to the other, if one parent has a higher income than the other. The reason for this is the idea that the children’s lifestyle should be the same regardless of which parent they are residing with at the time. To ensure the parent whose income is lower can afford to provide the same lifestyle for the children as their other parent, many courts (including Utah’s) will still order the richer parent to pay child support to the poorer parent for this purpose.
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.
I will answer this question in the context of Utah law because I am licensed as an attorney and practice divorce and family law in the state of Utah.
For the typical child in your situation, i.e., one who wants to obtain a modified order from the court changes the award of child custody from one parent to another, there is precious little that the child can do to affect this kind of change.
In fairness, there are some good policy reasons for why this situation arises. For example:
Young children often have poor judgment and may not know whether residing primarily with the parent the children wants to reside is in the child’s best interest.
– A 9-year-old child may say he/she wants to live with a particular parent not because that parent is a fit parent but just the opposite, i.e., doesn’t ensure the child completes homework, chores, doesn’t ensure the child practices good hygiene, feeds the child junk for meals, imposes no discipline, etc.
– A tween-age or teen-age child may say he/she wants to live with a particular parent not because that parent is a fit parent but because that parent lets the child run wild, skip school, drink, smoke, take drugs, be sexually active, etc.
Many young children can be too easily manipulated and/or intimidated into saying that they want what they don’t really want by way of the custody and parent-time schedule.
Some feel that seeking the input of children on the subject of the child custody and parent-time awards “traumatizes” (this word is grossly overused in family law) children by placing them in a position where they must favor or choose one parent over another.
These are clearly factors worth carefully considering if and when a child objects to residing with a particular parent or objects to a particular custody or parent-time schedule. But too often courts invoke these factors as a reason to utterly silence and to completely ignore anything a child has to say on. Why?
Is it because all minor children are clearly unable to be taken seriously because of their status as minor children? Obviously not. While some children may be too young or too immature to have sound bases for, or to make sound arguments for, their custodial preferences, plenty of children are more than sufficiently intelligent and mature and responsible to be credible witnesses on their own behalf. And we’ll never know whether a child is a credible or an incredible witness if we don’t inquire with the child first. Courts reject the testimony of lying and incompetent witnesses all the time (as well they should), yet many courts reject a child’s testimony without giving the child a chance to speak on the grounds that they might lie, that they might be coached, and/or that they might be too stupid or naïve to be taken seriously. That’s no different than convicting a defendant without a fair trial because he “might be” guilty.
Is it because asking a child to express his/her opinions is inherently and irreparably harmful to all children, or even to most children? Obviously not. If a child tells his/her parents and the court, “Don’t ask me to talk about this,” then it may be that honoring that child’s wishes is best. By the same token, however, if a child tells his/her parents and the court something to the effect of:
“I have a greater stake in the child custody and parent-time awards than anyone else involved in this case.”
“I have experiences, observations, opinions, and desires that deserve to be considered before the court makes these decisions that will affect my life for years to come as a youth and throughout my life as an adult.”
So why do some (most, though not all) courts refuse to hear from children about their custodial preferences and the reasons for those preferences? Why do some courts muzzle the children from the outset? Why do they refuse to weigh the credibility and evidentiary value of what the children who want to be heard have to say? In my opinion, it’s laziness disguised as “prudence” and “compassion”.
So, what does a child who wants and deserves a change of custody do? This may sound radical, but it’s really not: get your own attorney to help you. That’s the legal way to do it. And it’s easier said than done. You’ll be excoriated and mocked for trying. You may even be threatened. Be prepared for all this. There are all kinds of extralegal “self-help” methods that are easier and cheap or free by comparison, but that has never been an excuse to break the rules (unless the rules are inherently unfair or administered unfairly). I encourage children in your situation to work through the system even when it’s organized and administered to work against you.
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.
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.
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).
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.
there is a statute or court order that permits it; or
this kind of statute or court order could be the kind that permits the temporary denial of contact with the child on the grounds that it is necessary to protect a child from abuse or neglect;
this kind of statute or court order could be the kind that permits the temporary denial of contact with the child on the grounds that the other parent is suspected of engaging is engaging in activity that places the child at risk of harm (such as substance abuse, criminal behavior, severe mental illness, etc.);
the other parent was never (often referred to as the “noncustodial parent”) was never awarded any visitation (also know as “parent-time”) rights in the first place,
then no, the parent awarded sole (sometimes referred to colloquially as “full”) custody of the child cannot legally and lawfully prevent the other parent from contact with their minor child.
The fact that the noncustodial parent is paying child support likely makes it even harder to justify interfering with that parent’s visitation/parent-time, rights, if he/she has them.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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.
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
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\
Should I get sole custody of my children if their dad does not want to be involved with them? Or try to talk it out before I go through with it?
Your children deserve a loving, salutary relationship with both of their parents, so it is morally right to urge and encourage the father in this situation to love and care for his children. Yes, have that talk with the father. It’s pointless, however, to nag or try to guilt a father into loving and caring for his children when he doesn’t want to love and care for his own children. And it’s plain irresponsible and wrong to try to involve a father in his children’s lives if that father is a danger to the children, whether physically or emotionally/psychologically.
But where a father is not abusive, not a danger to the life or health of his own children, it’s not a bad idea to leave the door open. One day Dad might wake up and want to walk through it for the children’s benefit. Leaving open the possibility does not, of course, mean that the children will be receptive to repairing (or in some cases forming) their relationship with their father, but why slam that door and nail it shut if you must not? Do unto others as you would have them do for you. Don’t needlessly deprive the children of an opportunity to bond with their father.
That stated, this does not mean that you must ask the court for a joint child custody award. “Leaving the door open” does not require you treat Dad like an involved parent when he’s not. If Dad’s not around, not interacting with the children, not playing with them, bathing, feeding them, etc., not financially supporting the children, then there’s no good reason to act as though he is when the child custody awards are made. There’s no reason to “leave the door open” in a way that sets the kids up to have their hopes dashed and their hearts broken. If an absentee parent (father or mother) says that he or she recognizes the error of that absentee parent’s ways and wants to make amends, there must needs be a price to be paid by that parent. There will be hard words to hear from the other parent and child. He or she should expect caution and hesitancy, even skepticism, from the children and the other parent. There will be hard work and sacrifice ahead as well (and not just for Dad). Easier said than done. I get it. But if the children are willing to give Dad a second chance and he’s proven he can and wants to make good, it would be tragic and frankly inexcusable to deny the children that.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What will happen if the court ruled in favor of a mother to have the custody of her child but the child refuses to go with her and she prefers to stay with the father?
This situation (and this question) comes up a lot. I will answer the question as it applies in my experience to the jurisdiction where I practice divorce and family law (Utah).
SHORT ANSWER: The general rule of thumb is that if the child is a teenager and has the guts and the will to defy the court’s custody orders, then that child is going to live with the parent with whom he or she wants to live because the court is essentially powerless to force the child to comply with the child custody order, i.e., the court finds it more trouble than it is worth to enforce a child custody order against a defiant teen.
LONGER ANSWER: Technically, the child has no choice in the matter, once the court has issued its child custody ruling and resulting orders. In other words, just because somebody doesn’t want to follow court orders doesn’t mean that he or she is free to disregard them or to act as a law unto himself or herself. This proves to be true of court orders pertaining to adults. Child custody orders, and the children affected by them, however, are in reality a different matter.
In the law we have two terms that help to describe the situation: de jure and de facto. De jure means that which is which applies as a matter of law. For example, as a matter of law, your child is ordered to spend most of his/her time in the custody of mother, with the father spending time the child on alternating weekends and a few odd holidays. De facto means that which is or that which applies as a matter of fact (in reality, and not as the court may artificially require). So while as a matter of law your child is required to live with mother, if in reality (as a matter of “fact”—this is where the “facto” in “de facto” comes from) the child refuses to live with mother and stays at the father’s house, that is the de facto child custody situation.
When A) the de jure and de facto situations conflict in a child custody situation, and B) the child is old enough, strong enough, and willful enough to continue to the court’s custody orders, the court often (not always, but usually) feels that they are practicably powerless to force children to live with a parent with whom they do not wish to live.
Normally, when an adult will not comply with the court’s order, One of the tools a court can use to enforce compliance is its contempt powers. Those powers include finding and jailing the noncompliant person. But with children, that power is, for all intents and purposes, nonexistent. Children usually have no money with which to pay a fine, and Utah does not allow courts to jail minors for mere contempt of court.
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.
Courts don’t want to dedicate their own resources and law enforcement resources to 1) literally dragging a child out of one parent’s home and literally stuffing the child into some other home; and 2) doing so repeatedly when the child refuses to stay put. It’s a waste of law enforcement resources and the fear is the child will eventually run away (and act out in other self-destructive and dangerous ways), if not allowed to live with the parent of his/her choosing.
And courts don’t want to punish a parent for the misconduct of a child. Some courts have tried to punish noncustodial parent by holding them responsible for their children’s noncompliance with the court orders, but that doesn’t work when the noncustodial parent truly isn’t at fault. Courts realize that a noncustodial parent cannot simply, for example, 1) push the child out the door, lock it behind the child, and wish the child well in subzero degree weather; or 2) manhandle the child into the custodial parent’s car, then be charged with child abuse. And punishing the noncustodial parent often only serves to lead the child to be more determined to defy court orders.
As you can imagine, a child’s “power” to choose where he/she lives usually does not arise until the child is old enough and strong enough and willful enough to exercise some degree of autonomy over which parent with whom he/she lives. That doesn’t usually happen until children reach approximately the age of 12 or 14, although some children may start younger. Children under that age are typically unable or too afraid to exert their own preferences and wills.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What argument supports taking the views of a child into account when making custody determination?
The argument is this: the judge cannot determine if such evidence is relevant if the judge never actually has such evidence to consider.
In Utah (where I practice divorce and family law), this was the law as late as 1967 in this part of Utah Code Section 30-3-5:
When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children as may be equitable; provided, that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves. Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper.
You read that correctly. Time was in Utah (and I’m sure in many other states) that children 10 years of age or older got to choose which parent they lived with after divorce (back in a time when it was unthinkable to award joint custody of children to parents). Utah (and I’m sure most other states) no longer give the child the choice regarding the child custody award. That’s a good development, but Utah went too far and now rarely (so rarely it might as well be never) hear their experiences, observations, opinions, and desires regarding custody.
In Utah, those who have the greatest stake in the child custody award (i.e., the children themselves) have no right to express themselves and be heard on the record on the subject. At best, the court has the option of inquiring with the children, and so if the court does not want to hear from the children, it won’t hear from them.
[Utah also has provisions for appointing spokespeople for children in the form of guardians ad litem and custody evaluators, but the problem with them is that they are sources of nothing more than court sponsored hearsay, providing accounts allegedly coming from the children, but secondhand, filtered through the biases, agendas, and inattention inherent in every secondhand account. The so-called reasoning of judges who refuse to permit testimony directly from the child’s mouth to the judge’s ear is patently lame. One of the most common and most lame excuses goes something like this: “Allowing the children to testify places them in the middle of their parents’ child custody fight, so for the sake of sparing the children this trauma, I will not hear from the children.” You may have even heard this argument yourself from judges or even from attorneys. The flaw in such an argument arises when it is asserted to justify “hearing” from the children in the form of guardians ad litem and/or custody evaluators. Whenever I point out that questions to children are still going to be the same kinds of questions, regardless of whether they come from a guardian ad litem (who is a lawyer) or from a custody evaluator. It’s not as though the children somehow magically and cheerfully forget the purpose and import of such questions as long as a judge does not pose them.]
Some judges may worry that children are too young or too manipulable to be trusted to express their experiences and preferences in a way that is probative, in credible a way that will help the court make a sound, informed decision. But such judges can’t know one way or the other if the children are not questioned on the record at all. To assume that all children are inherently bad witnesses is unfair to everyone, but especially to the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I’m 14 and my mom is making me live with my dad and is giving him custody. What can I do to prevent this from happening?
I’m a divorce and family lawyer, and I see this question arise frequently.
If you don’t want to live with your father for the wrong reasons, give both your dad and yourself a break, and live with Dad. You know what I mean; if you don’t want to live with Dad because he has reasonable, sensible rules and expectations for your protection and benefit, you’re only hurting yourself if you try to avoid being held to high standards.
If Mom is too permissive, too hands-off, lets you get away with murder, doesn’t hold you accountable, then living with her is likely going to ruin you.
What Randy Pausch said has stuck with me ever since I heard it: “Your critics are the ones telling you they still love you and care. Worry when you do something badly and nobody bothers to tell you.”
If you don’t want to live with your mom because she’s abusive and neglectful, I wouldn’t go tell Dad first. Instead, I would try to find a lawyer who would help me. Be prepared to spend a very long time trying to find such a lawyer. They exist, but they are few and are thus hard to find.
Why not tell Dad about the abuse and/or neglect first? It’s a little complicated, but I’ll try to make it clear.
First, with few exceptions, courts are biased against fathers when it comes to deciding which parent with whom a child will live. Fathers who try to get custody are often believed by many courts as motivated only by self-interest, not by the best interest of their child or children.
Fathers who seek sole or even joint custody of their children are often portrayed as being motivated by anything but honest, virtuous objectives. Instead, they are often accused of/presumed as being motivated by a desire to avoid paying child support or a desire to hurt the mother emotionally by cutting the children off from her.
It is hard for some judges to believe fathers seek custody to protect the child from an abusive or neglectful mother because it’s hard for the court to believe the mother is abusive or neglectful in the first place. It is hard for some judges to believe that awarding to fit parents the joint equal physical custody of their children is best for the children. Far too many judges perceive the “safe bet” when making the child custody award as being: award custody of the children to Mom.
And so if your dad were to be the one to break the news to the court that you told Dad mom is abusive and/or neglectful, your dad’s claims would immediately be met with skepticism, if not scorn. Both your mother and the court would likely accuse your dad of lying for self-serving purposes, not for the purpose of protecting you and fostering your welfare.
So you may ask why you should not simply call child protective services and the police by yourself. Why not make these reports directly to child protective services and the police by yourself? Why get a lawyer to help you with this? These are good questions.
If you make abuse and/or neglect reports against your mother directly to child protective services and/or to the police, the risk is too great that child protective services and/or the police will 1) believe that Dad put you up to it anyway; and 2) write you off as not credible, regardless of whether they believe your dad put you up to making the abuse and/or neglect reports to them (after all, you’re “just a kid”).
And so it is my opinion that if you can find an attorney to help you, it is better to get an attorney—someone who knows how child protective services, the police, and the courts function and “dysfunction”—to help you navigate the system successfully by helping you avoid making costly, even irreparable, mistakes in your interactions with the system.
Utah Family Law, LC | divorceutah.com | 801-466-9277
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Joseph N. Twitchell appeals from a divorce decree and appurtenant findings of fact and conclusions of law, arguing that the district court failed to consider relevant statutory factors when forming its custody determination, awarded him less parent-time than the statutory minimum, and erroneously calculated his child support obligation based on an inaccurate accounting of the income of his ex-wife, Jazmin S. Twitchell. We find Joseph’s arguments persuasive on each of these issues, and accordingly, we remand for further proceedings.
BACKGROUND
¶2 Joseph and Jazmin[1] were married in 2016 and share one child (Child), who was born in May 2017. The parties “separated about a year after she was born.” Shortly thereafter, in June 2018, Jazmin filed for divorce, citing “irreconcilable differences.”
¶3 The court issued temporary orders in December 2018, awarding the parties joint legal custody of Child and designating Jazmin as the primary physical custodian, “subject to [Joseph’s] right to parent-time.” As to the parent-time schedule, the court directed the parties to follow the minimum schedule set out in section 30-3-35 of the Utah Code, with Joseph generally “designated as the non-custodial parent,” meaning that he could exercise parent-time on alternating weekends. In addition, the temporary orders granted Joseph an additional overnight with Child “every Thursday night,” with Joseph keeping Child for the weekend when it was one of his parent-time weekends and returning Child to Jazmin’s care by noon on Friday when it was not.
¶4 As the case proceeded to trial, Jazmin filed her financial disclosures, dated November 7, 2019. In her disclosures, Jazmin reported her gross monthly income as $2,111. In this document, under an entry entitled “Employment Status,” Jazmin listed the name of a child care center where she worked at some point. Under an entry for “Name of Employer,” she listed a local private school. Jazmin also filed a supplemental disclosure, dated September 23, 2019, informing the court that she had been serving as a “houseparent” at the private school since September 1, 2019, for which she received no monetary compensation but was provided room and board. Jazmin included a letter from a representative of the school who estimated that the value of the housing and utilities provided to Jazmin was $980 per month.
¶5 A two-day trial was held in December 2019, at which multiple witnesses testified. During Joseph’s testimony, he described instances of physical and verbal altercations beginning a few months into the parties’ marriage. He averred that the first time things became physical between the two was in November 2016, when stress regarding the upcoming holiday season resulted in an argument and Jazmin eventually “going after [him] with a knife,” cutting his hand. Joseph also described a time in Spring 2017 when he and Jazmin were in another argument, and he “went to go give her a hug and apologize . . . and she bit [his] right arm.” He then described one more instance where Jazmin told Joseph “she hated [him], over and over and over again,” which prompted him to threaten leaving with Child. In response, Jazmin “slapped or hit [him] with something across the face.” Joseph also presented photographs of injuries he sustained from each of these incidents, which were admitted into evidence without objection.
¶6 Several witnesses also testified as to their observations of Child’s condition once she went from Jazmin’s to Joseph’s care. One witness testified that on multiple occasions when Joseph received Child from Jazmin, Child had “severe diaper rashes” with blistering, “yeast infections,” and “bite marks on her feet,” and that she was “really dehydrated” to the point of not “even having a bowel movement for a day or two after.” Another witness also confirmed that Child had severe diaper rashes when she came to Joseph, to the point that Joseph had to seek care from a pediatrician, and testified that Child often “had bite marks on both her hands . . . and her feet.” Joseph also produced evidence documenting incidents of what he characterizes as “assaults” from other children at a daycare while Child was in Jazmin’s care.
¶7 Jazmin testified about her employment history since the parties’ separation. During the marriage, Jazmin had been “a stay-at-home mom,” but she started a job “within two weeks of leaving” to help provide for Child. She testified to working at a child care center from approximately July 2018 until March 2019, when she left to accept an offer to work for higher pay at another daycare center. She worked at that second center full-time until October 2019. Jazmin began serving as a houseparent at the private school in September 2019, a role she was still working in at the time of trial.
¶8 In addition to her financial disclosure in which she reported the aforementioned $2,111 figure, Jazmin also offered her 2018 tax return into evidence. That return listed only the first child care center as her employer and an annual gross income of $7,044.75—which would translate to approximately $587 per month. Jazmin nevertheless confirmed at trial that her gross monthly income was $2,100. When asked if that amount included the $980 value of her housing and utilities, she stated, “No. That . . . doesn’t have anything to do with that.” When asked about her current employment, she testified that she had just started working as a substitute teacher earning $75 per day, which she “guesstimate[d]” she did two to three days per week. Based on that “guesstimate,” Jazmin testified that she earned approximately $813 per month from substitute teaching as opposed to the $2,100 in her financial declaration. Jazmin also confirmed that, at the time of trial, she had no sources of income other than her “service as a houseparent, [and her] income from substitute teaching.”
¶9 Later, on cross-examination, when asked about the $2,111 reported as her gross monthly income in her disclosure, Jazmin admitted that there was actually “no documentation being provided with that [disclosure] that would substantiate that number.” While Jazmin was being cross-examined, the court interjected and expressed its confusion as to whether the $980 value of her housing expenses had been included in her reported monthly income; although Jazmin never answered the court directly, her attorney asserted that it was included within that amount (contradicting Jazmin’s earlier testimony in which she had stated the opposite). Jazmin also stated that at the time of trial, she had actually worked as a substitute teacher on only one occasion up to that point.
¶10 Testimony was also given by a representative of the private school, whom Jazmin had contacted to secure documentation of the value of her housing and utilities. A final draft of a letter from the representative was attached to Jazmin’s supplemental disclosure. But at trial, Joseph offered evidence of an earlier draft of the letter in which the representative had originally stated that the value of what Jazmin received was estimated at $1,800 per month for rent and $1,000 per month for utilities, whereas the amount given in the final letter was $980 for both rent and utilities. The representative testified that she had sent the initial draft to Jazmin’s grandmother asking if it was “acceptable,” and either Jazmin or her grandmother had then asked additional questions about the square footage and what portion of the house Jazmin was actually living in, and whether that was reflected in the amount the representative gave. This prompted the representative to change the amount to $980 in the final letter, based on a “pro-rated amount” that seemed more consistent with the part of the house where Jazmin was living.
¶11 The court issued findings of fact and conclusions of law in April 2020.[2] While it awarded the parties joint legal custody of Child, it also found that it was in Child’s “best interest” that Jazmin be awarded primary physical custody. In support, the court cited the following findings: Jazmin had primary physical custody of Child since the parties separated, and the parties had been “following” the parent-time schedule imposed by the court in its temporary orders, consisting of “alternating weekends, with [Joseph] being awarded overnight every Thursday”; Child was “happy and well[-]adjusted and [was] progressing well developmentally”; Child was “closely bonded to [Jazmin] as she ha[d] been the primary custodial parent since birth, while [Joseph] was the primary bread winner in the family”; it was in Child’s “best interest . . . to maintain a close relationship with her half sister,” of whom Jazmin has primary physical custody; Jazmin had “exhibited good parenting skills” and was “of good moral character, and emotionally stable”; Jazmin had “exhibited a depth and desire for custody of [Child] since . . . birth”; Jazmin had “a flexible work and school schedule and she ha[d] the ability to provide personal care rather than surrogate care”; Jazmin had experience in early childhood education; and Jazmin “exhibited sound financial responsibility” whereas the court was “concerned about [Joseph’s] lack of financial responsibility” based on his debt accumulations. In the findings, the court also expressed its “concern[] about the alleged physical abuse between the parties during the marriage” and therefore found it “appropriate” for the exchanges of Child to occur at a police department safe zone located roughly halfway between the parties’ homes.
¶12 The court additionally noted its consideration of the factors outlined in section 30-3-10.2 of the Utah Code, finding in particular that Child’s “physical, psychological, emotional and development needs will benefit from the parties sharing joint legal custody.” But the court listed several reasons under these factors why joint physical custody would not be appropriate, finding that the “parties do not effectively communicate with each other”; they lived “approximately 60 miles” apart; Joseph “participated in raising [Child] but not to the extent that [Jazmin] did”; “[t]o date there ha[d] not been . . . opportunities for either parent to protect [Child] from any conflict that may arise between the parties, due to [Child’s] age”; and “the parties’ relationship ha[d] stabilized and once these divorce proceedings have concluded it is anticipated the parties will be able to cooperate with each other and make appropriate joint decisions regarding [Child].”
¶13 As to parent-time, the court concluded that Joseph’s parent-time “shall be, until [Child] starts Kindergarten, every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m.” And on weeks that ended with Jazmin’s designated weekend, Joseph “shall return [Child] to [Jazmin] by Friday at noon, after his Thursday overnight visit.” The court also concluded that “[t]he parties shall follow the holiday parent time pursuant to Utah Code Ann. § 30-3-35” but that Joseph “shall be awarded six[ ]weeks of extended summer vacation instead of four[ ]weeks, consistent with Utah Code Ann. § 30-3-35 and by stipulation of [Jazmin] at closing arguments.”
¶14 Regarding child support, the court found that Jazmin “earn[ed] $980 per month gross wage from her house parent job” and “approximately $780 per month” from substitute teaching. It therefore calculated her gross monthly income at $1,760 for child support purposes. The court then found that Joseph’s average gross income is $5,011 per month, and therefore his “child support obligation is $582 per month.”
¶15 The court entered a decree of divorce in June 2020, in which it largely echoed the parent-time findings, ordering that Joseph’s parent-time “shall be every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m. On [Jazmin’s] weekend with the parties’ child, [Joseph] shall return [Child] to [Jazmin] by Friday at noon following his Thursday overnight parent time.” And once Child “commences Kindergarten [Joseph’s] parent time shall change[] to every other weekend from Friday (after school) to Sunday at 6 p.m., and a mid-week from after school until 7 p.m.” The decree did not mention a schedule for holidays or extended/vacation parent-time. The decree also reiterated what the court found to be the parties’ respective incomes, and accordingly it memorialized its decision ordering Joseph to pay $582 per month in child support.
¶16 Joseph promptly appealed the findings of fact and conclusions of law, as well as the divorce decree.
ISSUES AND STANDARDS OF REVIEW
¶17 On appeal, Joseph presents two main issues for our consideration. First, he attacks the district court’s custody determination on two bases, arguing that the court’s custody conclusion and the underlying factual findings are deficient because it failed to consider certain relevant factors and that the court erred in awarding him less than the minimum time provided by statute without explaining a reason to depart from the statutory minimum. “[W]e review the district court’s custody and parent-time determination for abuse of discretion.” T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Id. (quotation simplified).
¶18 Second, Joseph challenges the district court’s child support determination, asserting that it made errors in calculating Jazmin’s income, resulting in an inaccurate child support obligation.[3] “In reviewing child support proceedings, we accord substantial deference to the [district] court’s findings and give it considerable latitude in fashioning the appropriate relief. We will not disturb that court’s actions unless the evidence clearly preponderates to the contrary or there has been an abuse of discretion.” Hibbens v. Hibbens, 2015 UT App 278, ¶ 17, 363 P.3d 524 (quotation simplified).
ANALYSIS
I. Custody and Parent-Time
A. Consideration of the Relevant Factors
¶19 Joseph first asserts that the district court erred by failing to adequately consider certain statutory factors in formulating its custody determination. Specifically, he asserts that two factors did not receive the attention he feels they deserved by the district court, namely, any “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent” and “the past conduct and demonstrated moral character of the parent.” See Utah Code Ann. § 30-3-10(2)(a), (d) (LexisNexis 2019). We agree with Joseph that it is not clear from the district court’s findings that it considered evidence regarding abusive behavior by Jazmin, neglect and injuries to Child, or Jazmin’s moral character. Accordingly, we remand for the court to fully evaluate that evidence through supplemented or additional findings.
¶20 “In all custody determinations, the district court’s primary focus must be on the best interests of the child.” Pingree v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation simplified). Furthermore, when “determining any form of custody and parent-time” arrangement, the district court “shall consider the best interest of the child and may consider [any] factors the court finds relevant” to that end, including certain factors that are specifically articulated in the Utah Code. See Utah Code Ann. § 30-3-10(2). Importantly, not all these factors are “on equal footing”; instead, the 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.” T.W. v. S.A., 2021 UT App 132, ¶ 16, 504 P.3d 163 (quotation simplified).
¶21 Determining which factors the court must address in a given case, and to what degree, presents a tricky task. Inevitably, some factors will loom larger in a given case than other factors, and “[t]here is no definitive checklist of factors to be used for determining custody.” Sukin v. Sukin, 842 P.2d 922, 924 (Utah Ct. App. 1992). Consequently, “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.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258. On the other hand, a “court’s factual findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate. See Barnes v. Barnes, 857 P.2d 257, 261 (Utah Ct. App. 1993) (“The record is replete with highly disputed evidence relevant to the custody issue which is not dealt with at all in the findings. The findings do not show whether the court considered the moral conduct or emotional stability of the parties and what evidence the court found determinative in deciding the best interests of the children.”); Sukin, 842 P.2d at 925 (“Whenever custody is contested and evidence presents several possible interpretations, a bare conclusory recitation of factors and statutory terms will not suffice. We must have the necessary supporting factual findings linking those factors to the children’s best interests and each parent’s abilities to meet the children’s needs.” (quotation simplified)).
¶22 Joseph asserts that the district court failed to consider evidence presented at trial of domestic violence Jazmin had perpetrated against him as well as neglectful behavior Jazmin had purportedly inflicted on Child. Specifically, Joseph points to his own testimony at trial that Jazmin had slapped him in the face hard enough to leave red marks, had attempted to stab him with a pocket knife, and had bitten him. Joseph also presented photographic exhibits purporting to show his injuries from these incidents. Joseph also points to testimony at trial and an exhibit he introduced into evidence tending to show injuries that Child sustained while she was in Jazmin’s care. One witness testified that when Joseph received Child from Jazmin, Child often had “severe diaper rashes” with blistering, “yeast infections,” and “bite marks on her feet,” and that she was “really dehydrated” to the point of not “even having a bowel movement for a day or two after.” Another witness also confirmed that Child had severe diaper rashes when she came to Joseph, such that Joseph had to seek care from a pediatrician, and testified that Child often “had bite marks on both her hands . . . and her feet.” Finally, Joseph asserts that the court did “not analyze or even mention . . . multiple incidents” in which Jazmin supposedly “engaged in deceitful tactics” during the litigation. Specifically, Joseph asserts that Jazmin instructed a witness on what to testify regarding Jazmin’s income from her houseparent job, that Jazmin and another witness mischaracterized the events that precipitated an incident when the police were called around the time of the parties’ separation, that Jazmin claimed that the parties were married on a date different from that indicated on their marriage certificate, and that Jazmin supposedly attempted to manipulate the testimony of her ex-husband in the case.
¶23 With respect to “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent” and “the past conduct and demonstrated moral character of the parent,” see Utah Code Ann. § 30-3-10(2)(a), (d), the court made only the following finding: “[Jazmin] has exhibited good parenting skills, is of good moral character, and emotionally stable.” It then proceeded to emphasize the facts it believed supported Jazmin’s bid for custody: that Jazmin had been Child’s primary caretaker; that Child had a bond with Jazmin’s other child, her half-sister; that Jazmin had made sure Joseph received his parent-time in accordance with the temporary orders; that Jazmin had “a depth and desire for custody”; that Jazmin had a flexible schedule that would allow her to provide personal care for Child; that Jazmin had taken Child to her medical appointments; and that Jazmin was financially responsible, “industrious,” and “goal oriented.” The court made no findings regarding Joseph’s parenting abilities, past conduct, bond with Child, etc., except to express concern that he was in debt.[4] Finally, the court stated that it was “concerned about the alleged physical abuse between the parties” and concluded it was therefore appropriate for them to exchange Child at a police department safe zone.
¶24 “To ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Sukin, 842 P.2d at 924 (quotation simplified). The court’s finding that Jazmin “has exhibited good parenting skills, is of good moral character, and emotionally stable” is inadequate for us to determine whether the court exceeded its discretion in assessing the abuse/neglect and moral character factors or how those factors impacted Child’s best interests. Likewise, the court’s expression of “concern[] about the alleged physical abuse between the parties during the marriage” tells us nothing about how or even if the court weighed the abuse allegations in its custody evaluation. Indeed, it is not clear to us that the court considered this factor at all in assessing which parent should be awarded custody, as it mentioned the factor only in the context of concluding that it would be “appropriate” for the exchanges of Child to occur at a police department safe zone. Without at least some discussion of the evidence the court relied on in assessing the factors and how the court related the factors to Child’s best interests, the court’s findings regarding the custody factors are inadequate. See, e.g., K.P.S. v. E.J.P., 2018 UT App 5, ¶¶ 30–42, 414 P.3d 933 (determining that the court’s factual findings were inadequate where it made factual conclusions but did not discuss the evidence underlying those conclusions and rejected the guardian ad litem’s recommendation without explanation); Bartlett v. Bartlett, 2015 UT App 2, ¶ 6, 342 P.3d 296 (rejecting the court’s conclusory finding that the mother was “better able and equipped to support and sustain a positive relationship between the children and their father” where the “court identified no subsidiary facts supporting this finding” and had, in fact, “admonished Mother for denying Father court-ordered access to the children” (quotation simplified)); Barnes, 857 P.2d at 261 (rejecting as inadequate the court’s finding that “[t]he Plaintiff’s level of commitment to her children during the course of this separation has exceeded that of the Defendant and that’s been established by their actions during the course of their separation” because “[t]he findings do not show whether the court considered the moral conduct or emotional stability of the parties and what evidence the court found determinative in deciding the best interests of the children”); Roberts v. Roberts, 835 P.2d 193, 196–97 (Utah Ct. App. 1992) (deeming inadequate findings that “Husband has physically abused Wife during the marriage” and that “both parties have participated in acts that bear on their moral character,” accompanied by a recitation of examples of each party’s bad behavior because the recitation did not give any “guidance regarding how those acts bear on the parties’ parenting abilities or affect the children’s best interests” (quotation simplified)); Cummings v. Cummings, 821 P.2d 472, 478–79 (Utah Ct. App. 1991) (reversing the district court’s custody determination based on its failure to make findings regarding evidence relating to important custody factors); Paryzek v. Paryzek, 776 P.2d 78, 83 (Utah Ct. App. 1989) (holding that it was an abuse of discretion for the court’s findings to “omit any reference” to a custody evaluation and evidence relating to the bond between father and son, the father’s status as primary caretaker pending trial, the fact that the child thrived while in the father’s care, and the son’s preference for living with his father).
¶25 Thus, we conclude that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against Jazmin, her alleged neglect of Child, and her moral character, as well as the effect that evidence had on its best-interest analysis. Accordingly, we vacate the district court’s custody and parent-time order and remand for the court to revisit that evidence and enter additional or supplemented findings, as necessary.
B. Deviation from Statutory Minimum Parent-Time Schedule
¶26 Joseph next argues that the district court committed reversible error by awarding him less than the minimum parent-time he is guaranteed by statute. Because we agree that the court’s custody award indeed creates a situation in which Joseph is guaranteed less than the statutory minimum, without explaining its reasoning in adequate factual findings, we conclude that this is an additional reason to vacate the court’s parent-time order.
¶27 In the event that the parents of a minor child litigating that child’s custody are unable to agree to a parent-time schedule, our legislature has codified a “minimum parent-time [schedule] to which the noncustodial parent and the child shall be entitled.” See Utah Code Ann. §§ 30-3-35(2), 30-3-35.5(3) (LexisNexis 2019 & Supp. 2021). In fashioning its parent-time order, the court may either “incorporate[] a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or . . . provide[] more or less parent-time” than outlined in those sections, but in either case “[t]he court shall enter the reasons underlying the court’s order for parent-time.” Id. § 30-3-34(4) (Supp. 2021). The court’s reasoning must be outlined in adequate factual findings, which must “contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). Thus, the statutory minimum “provides [the court with] a presumptive minimum, but the district court still retains discretion to award more [or less] time” to the noncustodial parent, so long as it identifies “the reasons underlying its order” in sufficiently detailed factual findings. See T.W. v. S.A., 2021 UT App 132, ¶ 30, 504 P.3d 163 (quotation simplified).
¶28 There is a separate section dealing with the minimum schedule for children who are under five years of age, see Utah Code Ann. § 30-3-35.5 (2019), and those who are between five and eighteen years of age, see id. § 30-3-35 (Supp. 2021). As Child was born in May 2017, she is still currently younger than five, so section 30-3-35.5 applies. Under that section, Joseph is entitled to “one weekday evening between 5:30 p.m. and 8:30 p.m.,” “alternative weekends . . . from 6 p.m. on Friday until 7 p.m. on Sunday,” certain holidays, and “two two-week periods, separated by at least four weeks, at the option of the noncustodial parent.” See id. § 30-3-35.5(3)(f) (2019).
¶29 Under the court’s findings and the divorce decree, Joseph receives parent-time “every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m.,” and when it is Jazmin’s weekend, he returns Child to Jazmin “by Friday at noon following his Thursday overnight parent time.” Although Joseph correctly points out that the parent-time order requires him to return Child one hour earlier on Sundays than provided for in the statutory minimum schedule, Joseph ultimately receives more than the minimum parent-time required by statute while Child is under five, because he receives an additional weekday overnight, whereas the statute requires only a weekday evening visit. See id. Thus, for the time being, Joseph receives more than the statutory minimum.
¶30 But the situation changes when Child starts school. The district court ordered that once Child “commences Kindergarten,” Joseph’s parent-time “shall change[] to every other weekend from Friday (after school) to Sunday at 6 p.m., and a mid-week from after school until 7 p.m.” This schedule deviates from the statutory minimum, under which Joseph is entitled to “[a]lternating weekends . . . from 6 p.m. on Friday until Sunday at 7 p.m.,” and one weekday evening from either “5:30 p.m. until 8:30 p.m.” or, “at the election of the noncustodial parent, one weekday from the time the child’s school is regularly dismissed until 8:30 p.m.” Id. § 30-3-35(2)(a)(i), (2)(b)(i)(A) (Supp. 2021) (emphases added). Thus, under the court’s parent-time order, once Child begins kindergarten Joseph is required to return her to Jazmin one hour early on his weekends and one-and-a-half hours early during his weekday evenings.
¶31 As Joseph convincingly points out, while these discrepancies “may seem minor” to a casual observer, for “the non-custodial parent on a minimum visitation schedule, hours matter.” And, more importantly, the court did not explain—or even acknowledge—that it was departing from the statutory minimum. While section 30-3-35 is referenced in the findings of fact with respect to Joseph’s parent-time for holidays and summer vacation, the court made no other mention of the statutory minimum schedule.[5] As noted, when making its custody decision the court must give the “reasons underlying” its decision. See id. § 30-3-34(4); T.W., 2021 UT App 132, ¶ 30. The court did depart from the statutory minimum in this case, and it gave no reason for doing so in its findings.
¶32 As a result, we are prevented from conducting meaningful “appellate review to ensure that the district court’s discretionary determination was rationally based.” See Lay, 2018 UT App 137, ¶ 19 (quotation simplified). Accordingly, the findings in support of the district court’s parent-time order are insufficient, leaving us with no choice but to remand the matter for the court to adopt the statutory minimum schedule or otherwise explain its reasoning for departing from the minimum through adequate factual findings. See id.
II. Child Support
¶33 Joseph next challenges the district court’s child support determination, arguing that its determination of Jazmin’s income was entirely unsupported by the evidence and insufficiently explained. Because we agree that the court did not sufficiently explain how it reached the number it did in calculating Jazmin’s monthly income, we remand for entry of additional findings.
¶34 “A noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income.” Barrani v. Barrani, 2014 UT App 204, ¶ 11, 334 P.3d 994. Each parent’s “gross income” for purposes of child support “includes prospective income from any source, including earned and nonearned income sources which may include salaries, wages, . . . [and] rents.” Utah Code Ann. § 78B-12-203(1) (LexisNexis 2018). “Income from earned income sources is limited to the equivalent of one full-time 40-hour job.” Id. § 78B-12-203(2). “[C]hild support is appropriately calculated based on earnings at the time of trial,” but district courts also “have broad discretion to select an appropriate method” of calculating each parent’s income. Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct. App. 1998).
¶35 In this case, there were a number of potential bases for the court to assess Jazmin’s income. First, it could have accepted the declared full-time income in her financial declaration of $2,100, which she initially reaffirmed at trial. Second, it could have used her part-time substitute teaching income of approximately $813 per month combined with her in-kind income of $980 per month to reach a monthly income of $1,793. Third, it could have imputed her full-time income based on her substitute teaching salary of $75 per day for a total of $1,625 per month. There may, perhaps, have been other methods the court could have employed as well, had it adequately explained its reasoning.
¶36 Generally, “so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a trial court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified). And had the court taken one of the approaches outlined above, or another approach for which its reasoning was apparent, we would be inclined to affirm the court’s decision.[6] However, here the district court’s finding that Jazmin earned “approximately $780 per month” from substitute teaching does not align with any evidence submitted at trial, nor, so far as we can tell, can it be extrapolated from that evidence.[7] As Joseph observes, this number “do[es] not appear to come from the documentary or testimonial evidence at all.” Jazmin testified that she earned $75 per day working as a substitute teacher but that she worked only two to three days a week. Using these numbers, she reached a “guesstimate” of her monthly income of $813 per month ($75 per day x 2.5 days per week x 52 weeks per year / 12 months). While Jazmin was admittedly unsure about the amount she would be able to earn, the $780 figure adopted by the court appears to not be supported by the evidence presented at trial. While we are reluctant to reverse a district court’s child support order on this basis considering the small discrepancy between the $813 and $780 figures, the fact remains that we are unable to identify the “steps by which the ultimate conclusion on [this] factual issue was reached.” See id. (quotation simplified).
¶37 In such situations, “without the benefit of the reasoning and additional findings by the [district] court,” we must remand the child support decision to the district court to detail its full reasoning, through adequate findings, for why it chose the income amount for Jazmin that it did. See Bell v. Bell, 2013 UT App 248, ¶ 19, 312 P.3d 951.
CONCLUSION
¶38 This appeal compels us to remand the case because the district court’s findings and conclusions were infirm in several respects. First, the court failed to address disputed evidence that was highly relevant to the court’s custody determination. Second, the court’s order awards Joseph less than the statutory minimum parent-time once Child starts kindergarten, without explaining why or recognizing that it did so. And third, the court’s findings regarding Jazmin’s income contain insufficient detail for us to adequately review its reasoning.
[1] Because the parties share the same surname, we follow our oft-used practice of referring to them by their first names, with no disrespect intended by the apparent informality.
[2] Other than mentioning that “both parent[s] can step up and be good parents and both parents in large part have been good parents,” the court did not announce a ruling from the bench at the conclusion of the trial. Instead, it asked both parties to prepare proposed findings of fact and conclusions of law and heard closing arguments at a subsequent hearing. Ultimately, with only a few minor alterations, the court adopted Jazmin’s findings of fact and conclusions of law in their entirety.
While we would not go so far as to say that it is inappropriate for the court to fully adopt one party’s proposed findings, before signing off the court should confirm that those findings conform to the evidence presented at trial and that the findings sufficiently explain the court’s reasoning for the decision. In this case, it appears that the court adopted Jazmin’s version of the evidence without confirmation of that evidence and without disclosing the steps by which the ultimate conclusion on each factual issue was reached.
[3] As part of his broader challenge to the district court’s child support determination, Joseph purports to include another argument: that the court erred in dividing the parties’ debts. However, Jazmin points out that while Joseph included this argument in his articulation of the issues on appeal, he “did not [substantively] address the debt issue in his brief.” Indeed, we find a dearth of any argument regarding the debt distribution in Joseph’s brief; accordingly, Joseph has failed to properly raise such an argument for our consideration.
[4] We are troubled by the manner in which the district court’s findings focused exclusively on Jazmin rather than comparing hers and Joseph’s relative character, skills, and abilities. See Woodward v. LaFranca, 2013 UT App 147, ¶¶ 22, 26–28, 305 P.3d 181 (explaining that a court’s findings must “compare the parenting skills, character, and abilities of both parents” and reversing a finding that the emotional stability factor weighed in favor of mother because it was based solely on the determination that mother was emotionally stable without any findings regarding father’s emotional stability; “the question for the court was not whether Mother was emotionally stable, but whether Mother was more emotionally stable than Father” (quotation simplified)), abrogated on other grounds by Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422. We urge the court on remand to make the appropriate comparisons in revising its findings.
[5] Furthermore, section 30-3-35.5 is not referenced at all, which would have been the operative section from the time the decree was entered until Child turns five.
[6] While a finding that aligned with the various numbers presented at trial would have met the bare minimum threshold for sufficiency, we note that this case would substantially benefit from further analysis. First, the court did not address the inconsistencies in Jazmin’s trial testimony regarding her income. Jazmin first agreed that the $2,111 monthly income in her financial declaration was accurate but then went on to testify that she made only $75 per day substitute teaching and worked only two to three days per week. But the court did not address or explain the reasoning behind its resolution of this inconsistency. Second, Joseph presented evidence that Jazmin’s housing and utilities had been undervalued. The court’s decision included no discussion of the conflicting evidence regarding the value of Jazmin’s in-kind earnings or its assessment of that conflicting evidence. On remand, the court’s findings could benefit from a more thorough discussion of the evidence and explanation for its resolution of these conflicts.
[7] In Jazmin’s post-trial brief, she stated, without any supporting evidence, that she earned $72 per day, for a total of $780 per month. This appears to be the source of the court’s number. As assertions in the post-trial brief are not evidence, the court could not rely on this number to calculate child support.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant
Todd R. Sheeran, Attorney for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
TENNEY, Judge:
¶1By statute, a district court must ordinarily find that a material and substantial change in circumstances occurred before modifying the custody provisions in a divorce decree. In this appeal, we’re asked to answer two main questions about this statute.
¶2First, if a decree is silent about whether one of the parents has legal custody of a child, is the district court later required to find that there was a material and substantial change in circumstances before determining whether that parent has legal custody in the first instance? We conclude that a material and substantial change in circumstances is not required in such a scenario.
¶3Second, in situations where the custody modification statute is applicable, can a custodial parent’s attempt to sever a years-long relationship between the noncustodial parent and a child legally qualify as a material and substantial change? We conclude that it can.
¶4 Based on these two conclusions, we affirm the modifications at issue.
BACKGROUND [10] The Divorce Decree
¶5Nicole and Bryant Widdison were married in June 2004. They had two children during their marriage, Daughter and Son. Bryant is Daughter’s biological father, but Nicole conceived Son with another man during a brief separation from Bryant. Nicole and Bryant reconciled before Son’s birth, however, and Bryant was in the delivery room when Nicole gave birth to Son. Bryant is listed on Son’s birth certificate, and Son bears Bryant’s surname.
¶6Nicole and Bryant divorced in July 2015. Daughter was ten years old at the time, and Son was about three and a half. The divorce decree (the Decree) was largely based on a stipulation between Nicole and Bryant.
¶7In the portions relevant to this appeal, the Decree provided:
Physical Custody: Nicole shall have physical custody of both said minor children. Bryant will remain on Son’s birth certificate unless or until he is challenged by some other legitimate party who prevails in a court of law.
. . . .
Legal Custody: The parties shall have “joint legal custody” of Daughter.
. . . .
Parent-Time/Visitation: Bryant shall be entitled to reasonable parent-time with Daughter. Reasonable parent-time shall be defined as the parties may agree. However, if the parties are not able to agree, Bryant shall be entitled to the following parent-time:
. . . .
2) . . . Bryant may have two (2) overnights each week to coincide with the days that he is off work with the parties’ oldest child, Daughter[,] during the school year. . . . During the Summer months Bryant may have three overnights every other week and two overnights on the alternating weeks. . . . As for the youngest child, Son, parent-time will be at Nicole’s sole discretion . . . .
3) Bryant shall also be entitled to holidays and summer parent-time as articulated in U.C.A. § 30-335 . . . .
. . . .
Child Support: . . . Based on [the parties’] incomes, and a sole custody worksheet (even though the parties have a different parent-time arrangement and with the benefit and consent of counsel after being informed and involved), Bryant shall pay Nicole child support in the amount of $450.00 each month for the one female child (Daughter). . . . Any reference to a financial obligation[] or child support in this document shall be interpreted as applying only to the older child (Daughter).
(Emphases added.)
¶8As noted, the Decree gave Nicole “sole discretion” over whether Bryant could spend parent-time with Son. During the first three years after the divorce, Nicole “regularly and consistently allowed Son to exercise time with Bryant.” Her usual practice was to allow Son to accompany Daughter whenever Daughter visited Bryant. Since the Decree entitled Bryant to spend a little over 30 percent of the time with Daughter, this meant that Bryant spent a little over 30 percent of the time with Son during those years too.
The Modification Petitions
¶9In November 2016, the State filed a petition to modify the Decree to require Bryant to pay child support for Son. The State’s petition noted that Son was born during Nicole and Bryant’s marriage, and it asserted that Bryant was Son’s presumptive legal father under Utah Code § 78B-15-204(1)(a) (LexisNexis 2018)11, which states that a “man is presumed to be the father of a child if,” among others, “he and the mother of the child are married to each other and the child is born during the marriage.” The State noted that “[n]o child support has been ordered for this child.” It accordingly asked the court to “find[] Bryant to be the legal father of Son” and order him to pay child support for Son.
¶10In his answer to the State’s petition, Bryant agreed that he “is the presumptive father” of Son and expressed his “desire[]” to “be treated as the natural father of Son” “for all intents and purposes.” Bryant also asked the court for an order granting him joint legal and physical custody of Son, as well as a “clarification of his rights and duties, namely parent-time with Son.”12
¶11 In September 2018, Bryant filed his own petition to modify the Decree. There, Bryant asserted that he “has been the only father figure that Son has known,” and he argued that he “should be presumed and considered the legal father of Son.” Bryant also argued that “[t]here has been a significant, substantial and material change in circumstances that has occurred since the parties’ Decree of Divorce concerning custody, parent-time, and child support, such that modification of the Decree of Divorce is in the best interests of the minor children.”13
Motion for Temporary Relief
¶12 About two months after Bryant filed his petition to modify, Nicole suddenly cut off Bryant’s parent-time with Son. After she did, Bryant filed a motion for temporary relief, asking the court to award him “his historical/status quo parent time with both the minor children” until his petition to modify was resolved.
¶13 The matter went before a court commissioner, and a hearing was held in which Bryant and Nicole and their respective attorneys were present. During the hearing, the commissioner heard how often Son accompanied Daughter during her visits with Bryant. At the close of the hearing, the commissioner ordered Nicole to “immediately resume Bryant’s historical/status quo parent time with both minor children” and to “allow Son to follow the parent-time schedule of Daughter, consistent with the historical parent-time exercised by Bryant.”
¶14 Nicole objected to the commissioner’s recommendation, but the district court overruled that objection. The court instead agreed to temporarily “modify the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child.” The court continued that it “could also be argued that such visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” Nicole was thus ordered to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending.
The Relocation Proceedings
¶15 A short time later, Nicole requested an expedited phone conference with the court, explaining that the company she worked for was requiring her to relocate to California. After a hearing, the commissioner recommended that “[t]he children . . . remain in Utah until the Court changes the Order regarding custody and parent time.”
¶16 During the hearing, the commissioner further noted that “[c]onspicuously absent from Nicole’s argument [was] anything—from this Court’s perspective—showing she’s considering the child’s perspective.” In particular, the commissioner explained that
Son has shared time with the older sibling going to Bryant’s home. Nicole has regularly and consistently allowed this child to exercise time with Bryant. In [November] of 2018, Nicole disagreed. And I agree, she does have the discretion to make decisions with regard to Son. From the child’s perspective, however, one child goes with Dad and the other doesn’t, because Bryant stepped on Nicole’s toes. She says, I’m establishing boundaries; you don’t get to see this child. That’s fine if this child is a car or a refrigerator. Son [is] a person who has Bryant’s surname, who has been exercising time—from what I can see—[a] full seven years.
The commissioner further explained that “there’s been enough of a change, enough consistency for this younger child, that he has followed the older child, has the same surname [as Bryant], [Bryant’s] name’s on the birth certificate that has not been changed, to follow [Daughter’s parent-time] schedule.”
¶17 Nicole did not object to the commissioner’s recommendation, and she hasn’t relocated in the meantime.
The District Court’s Ruling on Bryant’s Petition to Modify
¶18 A bench trial was held in November 2019 to settle the issues raised in Bryant’s petition to modify and Nicole’s request to relocate. The district court later entered an order titled “Amended Findings of Fact and Conclusions of Law on Petitioner’s Relocation Request,” which addressed both the relocation request and the broader issues regarding Bryant’s legal and physical custody.
¶19 In its order, the court first concluded that the petition to modify was “appropriate in that there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” The court did not, however, more specifically identify what those “changes in circumstances” were.
¶20 Second, the court concluded that Nicole had “failed to rebut the presumption of paternity that exists in this case.” In the court’s view, Nicole had not shown by a “preponderance of the evidence that it would be in the best interest of Son to disestablish the parent-child relationship that has been created and substantiated by both of the parties over many years.” The court then “enter[ed] an adjudication that Bryant is the father of Son” and modified the Decree to “impose as to Son parental obligations” on Bryant, “including the obligation to pay child support for Son.”
¶21Third, the court “award[ed] Bryant joint legal custody of Son on the same terms as the Decree provide[d] for Daughter.”
¶22 And finally, the court ruled that Nicole was “free to relocate.” If she did, the court awarded Bryant parent-time with both children under the terms set forth in Utah Code section 303-37(6) (Supp. 2021). If Nicole stayed in Utah, however, the court awarded Bryant “parent time with Son on the same terms as was occurring with Daughter.”
¶23 That same day, the court issued a separate “Order Modifying Decree of Divorce.” This order reiterated that Bryant is “adjudicated to be the legal father of both Daughter and Son,” that Bryant now bore “all parental obligations in accordance with Utah law,” including the “obligation to pay child support” for both children, and that Bryant had “joint legal custody of both children on the same terms set forth in the [original] Decree with respect to Daughter.” The court further repeated the parent-time schedule that was set forth in its ruling on the relocation request—i.e., it awarded Bryant parent-time with Son on the same terms that he had with Daughter. It then declared that, “[e]xcept as modified by this Order, the parties’ Decree remains in full force and effect.”
ISSUES AND STANDARDS OF REVIEW
¶24 Nicole challenges the district court’s decisions to give Bryant (1) legal custody of Son and (2) parent-time with Son. We review a district court’s decision to modify a divorce decree, as well as a court’s parent-time determination and custody award, for abuse of discretion. See Stephens v. Stephens, 2018 UT App 196, ¶¶ 20–21, 437 P.3d 445; MacDonald v. MacDonald, 2017 UT App 136, ¶ 7, 402 P.3d 178.
¶25 As discussed below, we regard one portion of the ruling in question as a determination of custody in the first instance. “A district court’s award of custody is reviewed for abuse of discretion.” Taylor v. Elison, 2011 UT App 272, ¶ 8, 263 P.3d 448. As also discussed below, another portion of Nicole’s argument turns on whether the circumstances at issue can legally qualify as a change in circumstances. We review that decision for correctness. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) (“[I]n this case, we are presented with a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.”).
ANALYSIS
¶26“While there are several tools that can generally be used to modify final judgments, one tool that is specific to family law cases is the petition to modify.” McFarland v. McFarland, 2021 UT App 58, ¶ 25, 493 P.3d 1146 (quotation simplified); see also Ross v. Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a general rule . . . that any changes to divorce decrees must be brought about by the filing of a petition to modify.”). “Parties in family law cases may use this tool, in accordance with applicable statutes and rules, to seek modification of various provisions of decrees.” McFarland, 2021 UT App 58, ¶ 25.
¶27 “On the petition of one or both of the parents,” the governing statute allows a court to “modify or terminate an order that established joint legal custody or joint physical custody” if “the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified” and the modification “would be an improvement for and in the best interest of the child.” Utah Code Ann. § 30-3-10.4(1) (LexisNexis 2019). This is a “bifurcated procedure,” Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982), and Utah courts have consistently referred to it as a “two-step” process, Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553. See also Becker v. Becker, 694 P.2d 608, 610–11 (Utah 1984). Notably, it’s also a sequential process, in that a court cannot “reopen[] the custody question until it has first made a threshold finding of substantially changed circumstances.” Doyle, 2011 UT 42, ¶ 25 (quotation simplified).14
¶28 As explained above, the district court made a number of changes to the Decree, and Nicole now challenges two of them on appeal: the decision to award Bryant legal custody of Son and the decision to grant Bryant parent-time with Son. We address each in turn.
I. Legal Custody
¶29 Nicole first challenges the district court’s decision to award Bryant joint legal custody of Son. Nicole claims that, “[u]nder the decree, [she] had sole . . . legal custody of Son,” and she then argues that under the two-step process described above, the district court erred by granting legal custody to Bryant without first providing any “analysis regarding a change in circumstances.” In her view, “[t]he district court disregarded the custody . . . arrangements from the decree and awarded joint [legal] custody of Son as if the decree had never been entered.”
¶30Nicole’s argument, however, is based on a false premise— namely, that the Decree had awarded her sole legal custody of Son. But it hadn’t. The Decree had a separately enumerated “Legal Custody” subsection. That subsection stated that “[t]he parties shall have ‘joint legal custody’ of Daughter.” (Emphasis added.) This provision said nothing about Son, and no other provision in the Decree purported to establish whether Nicole had legal custody of Son (let alone sole legal custody), or instead whether Bryant did (or didn’t) have any form of legal custody of Son himself. Instead, on this, the Decree was silent.15
¶31But the court was legally required to make a legal custody determination for Son. The Utah Code states that courts “shall enter . . . an order of custody”—both legal and physical—when a “married couple’s marriage is declared void or dissolved.” Utah Code Ann. § 30-3-10(1) (2019) (emphasis added). The term “shall,” of course, has long been regarded as a command. See, e.g., Lay v. Lay, 2018 UT App 137, ¶ 12, 427 P.3d 1221.16
¶32 The Decree’s silence impacts how we view Nicole’s arguments on appeal. Again, the Decree is silent about whether Bryant (or any other putative father) had legal custody of Son, and it likewise said nothing about whether Nicole (or any other mother) had legal custody of Son. So the question here is whether the court could correct this oversight without having to first determine that there had been a sufficient change in circumstances to warrant modification.
¶33 We conclude that a change in circumstances was not required for the court to correct the Decree in this manner. As noted, the change-in-circumstances requirement is set forth in Utah Code section 30-3-10.4. This requirement “serves multiple interests.” Doyle, 2011 UT 42, ¶ 25. “First, because a custody decree is predicated on a particular set of facts, that decree is res judicata,” so “the changed-circumstances requirement prevents an unnecessary drain on judicial resources by repetitive litigation of the same issue when the result would not be altered.” Miller v. Miller, 2020 UT App 171, ¶ 17, 480 P.3d 341 (quotation simplified). “Second, the changed-circumstances requirement protects the custodial parent from harassment by repeated litigation.” Id. (quotation simplified). And third, “the requirement protects the child from ‘ping-pong’ custody awards,” id. (quotation simplified), thus emphasizing “the importance of a stable and secure homelife for children who are shifted from one parent figure to another” and ensuring that custody issues are not frivolously or infinitely “reopen[ed],” Hogge, 649 P.2d at 53–54 (quotation simplified).
¶34 None of these concerns are implicated here. To the contrary, since the question of whether Bryant had legal custody of Son was unaddressed in the Decree, there was nothing for the court to “reopen” or change. Id. at 53. Thus, properly understood, Nicole isn’t really challenging a decision to modify a prior determination that Bryant should (or shouldn’t) have legal custody of Son. Rather, what Nicole is actually challenging is a decision that, in effect, decided legal custody in the first instance. Because of this, we conclude that no change in circumstances could reasonably be required. After all, if it were true that a court couldn’t correct an omission of a required determination without pointing to a change in circumstances, divorce decrees like this one would be left indeterminate about key issues such as who had legal custody of a child. And the effect of such omissions would be felt by both the children and the parents, all of whom would be left without the guidance and certainty that custody determinations are intended and required to provide. We decline to create, let alone endorse, such an approach.
¶35Our determination thus leaves the remaining question of whether the court exceeded its discretion when it awarded joint legal custody of Son to Bryant in the first instance. We conclude that it didn’t.
¶36 “Under both the United States Constitution and the constitution of [Utah], a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.” Utah Code Ann. § 80-4-104(1) (Supp. 2021). Because of this, legal custody is linked to the fact of parentage. Our supreme court, for example, has held that a father has “legal custody of [his] [c]hild by virtue of his paternity,” In re adoption of B.B., 2017 UT 59, ¶ 81, 417 P.3d 1, and the same would of course be true for mothers by virtue of their maternity. Indeed, by statute, Utah law “presume[s] that a parent automatically enjoys legal custody” of his or her child, and this is so because of “the fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child.” Id. (quotation simplified). The legislature has also established “a rebuttable presumption that joint legal custody” “is in the best interest of the child.” Utah Code Ann. § 30-3-10(3) (2019).
¶37Here, Son was born during Nicole and Bryant’s marriage, so Bryant was legally “presumed to be” Son’s father. Id. § 78B15-204(1)(a) (2018). And while this presumption of paternity can be overcome, the district court concluded that it was not. Instead, in the same ruling at issue on appeal, the court declared Bryant to be Son’s legal father, and Nicole has not challenged that paternity decision on appeal.
¶38 As also noted, however, Bryant’s now-established paternity of Son presumptively gave him joint legal custody of Son too, based in part on Bryant’s own constitutional interests in the care and raising of Son, who is his child. See In re adoption of B.B., 2017 UT 59, ¶ 81. In her arguments to us, the only reason that Nicole gives for overcoming this presumption is the fact that the initial Decree was silent about whether Bryant had legal custody of Son. But as we’ve explained, that omission was a legal error. And when the district court was alerted to that error, it appropriately fixed it. Once the court did, the result was that Bryant—who was present at Son’s birth, was listed on Son’s birth certificate, and has acted as Son’s father since birth—was now Son’s legal father, which meant that he was presumptively entitled to legal custody of Son too.
¶39 In short, under these circumstances, no change in circumstances was required, and we see no abuse of discretion in the court awarding legal custody of Son to Bryant in the first instance.
II. Physical Custody
¶40 Nicole next challenges the district court’s decision to modify the Decree’s provisions regarding parent-time with Son. As set forth below, we first clarify (A) the nature of the modification, (B) the district court’s reasons for it, and (C) the standard of review applicable to Nicole’s particular challenge. We then hold that (D) the change in circumstance at issue can legally support a modification of custody.
A. The Nature of the Modification
¶41 The Decree was silent about legal custody of Son, but it wasn’t silent about physical custody. Instead, it affirmatively gave Nicole “physical custody of both said minor children”—i.e., both Daughter and Son. And while the Decree then set forth a delineated parent-time schedule for Daughter, it left Bryant’s parent-time with Son to “Nicole’s sole discretion.”
¶42In the ruling at issue, the district court modified this. The court removed Nicole’s “sole discretion” over parent-time for Son and set forth two alternative parent-time schedules. If Nicole remained in Utah, Bryant would have parent-time with Son “on the same terms as was occurring with Daughter.” If she moved to California, however, Bryant would have one weekend per month with both children as well as additional time with them during the summer. See Utah Code Ann. § 30-3-37(6) (2019).
¶43Although this ruling was couched in terms of parent-time, the parties have both suggested in their briefing that this amounted to a modification of physical custody of Son. We agree.
¶44 Physical custody and parent-time “are conceptually distinct.” Ross, 2019 UT App 104, ¶ 14 n.3. “Physical custody has long been understood to involve much more than actual possession and care of a child,” instead implicating the right and “legal responsibility to provide supervision and control” of a child. Hansen v. Hansen, 2012 UT 9, ¶ 15, 270 P.3d 531. By contrast, the term “parent-time” more narrowly refers to the amount of time that a parent is entitled to spend with the child. See generally Utah Code Ann. §§ 30-3-34 to -36 (2019 & Supp. 2021) (setting forth minimum, optional, and equal parent-time schedules as well as parent-time considerations for special circumstances).
¶45 That said, the terms are intertwined because, “[b]y statutory definition, there are two kinds of physical custody— sole physical custody and joint physical custody,” and “the dividing line” between the two is largely “based on the number of overnight visits enjoyed by each parent.” McFarland, 2021 UT App 58, ¶ 36. When a child “stays with each” of his or her “parent[s] overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support,” each of the parents has joint physical custody of the child. Utah Code Ann. § 30-3-10.1(3)(a) (2019). But when a child stays with one parent overnight for less than 30% of the year, the parent who has over 70% of the overnights is considered to have sole physical custody of the child. See id.; Utah Code Ann. § 78B-12-102(15) (Supp. 2021); McFarland, 2021 UT App 58, ¶ 36.
¶46 Here, the Decree did not specifically determine whether Nicole had “sole” or “joint” physical custody of either of the children. But at least with regard to Son, the Decree effectively awarded Nicole sole physical custody because it gave her “sole discretion” whether Son would spend any parent-time with Bryant at all. And, critically for this appeal, the Decree also awarded Bryant what amounted to joint physical custody of Daughter. After all, the dividing line is 30% of the overnights, and 30% of the 365 days in a year is roughly 110. In the proceedings below, the commissioner reviewed the Decree and determined that the parent-time schedule gave Bryant more “than the 110 overnights,” which accordingly meant that Bryant had “joint physical custody” of Daughter. Thus, when the district court later equalized Bryant’s parent-time with Son to match the parent-time he had with Daughter, it in effect modified the Decree to give Bryant joint physical custody of Son too.17
B. The Basis for the District Court’s Change-in-Circumstance
Determination
¶47 As noted, the district court determined that “there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” But the court did not specifically delineate what those changes were. Because of this, Nicole initially asks us to reverse the modification based on the court’s failure to provide any “analysis as to why a custody modification was justified” under the required change-in-circumstances test.
¶48 We acknowledge that the district court’s ruling on this could have been more clear. But even so, “a trial court’s failure to make explicit findings supporting its decision does not, alone, warrant reversal so long as the basis for the trial court’s ruling is readily apparent from the record.” In re A.S., 2014 UT App 226, ¶ 7, 336 P.3d 582; cf. State v. Pecht, 2002 UT 41, ¶ 34, 48 P.3d 931 (explaining that “where the record as a whole sufficiently” indicates the basis for the court’s ruling, “an absence of written findings will not invalidate the trial court’s conclusions”).
¶49Here, the court expressly concluded that there had been a change in circumstances, so the court was plainly cognizant of the requirement and believed that it had been met. And from our review of the record, we believe that the basis for the court’s determination is sufficiently apparent. In its ruling regarding the temporary orders, the court temporarily “modif[ied] the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child” and that “visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” It thus ordered Nicole to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending. This initial decision demonstrated two key things: (1) the court intended to equalize Bryant’s parent-time with Daughter and Son, and (2) it more specifically intended to prevent Nicole from “reducing” Bryant’s parent-time with Son.
¶50 The court’s ruling on Nicole’s relocation request (which, again, accompanied the modification ruling) was consistent with these goals. There, the court ruled that Bryant should be declared Son’s father—a determination that, again, Nicole has not challenged on appeal. Notably, in doing so, the court expressed its intention to not allow Nicole to “disestablish the parent child relationship” between Bryant and Son “that has been created and substantiated by both of the parties over many years.”
¶51 Together, these orders reflect the court’s intention to formally recognize and now protect Bryant’s relationship with Son. From all this, we believe it is “readily apparent from the record,” In re A.S., 2014 UT App 226, ¶ 7, that the change in circumstances found by the court to support modification included: (i) the changes in Bryant’s relationship with Son (namely, the three years of additional parent-time bonding, as well as Bryant’s new status as Son’s legally recognized father), and (ii) Nicole’s recent attempts to cut off Bryant’s access to Son.
C. Standard of Review
¶52 Nicole next argues that Bryant’s further-developed relationship with Son and her decision to cut off parent-time between the two could not legally qualify as a change in circumstances under the custody modification statute. As noted in the Standard of Review section above, supra ¶ 25, we regard this as a legal question that is reviewed for correctness. In light of our past caselaw, this warrants some explanation.
¶53 This court has previously held that a district court’s “determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the [district] court abused its discretion.” Nave-Free v. Free, 2019 UT App 83, ¶ 8, 444 P.3d 3 (quotation simplified); accord Christensen v. Christensen, 2017 UT App 120, ¶ 10, 400 P.3d 1219; Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. We reaffirm our adherence to this general rule here.
¶54 On occasion, however, we have held that the abuse-of-discretion standard applies to a district court’s “ultimate determination regarding the presence or absence of a substantial change in circumstances.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159 (emphasis added); accord Harper v. Harper, 2021 UT App 5, ¶ 11, 480 P.3d 1097. But when we have been presented with an argument that didn’t challenge the court’s “ultimate determination” of whether certain facts constituted a material and substantial change in circumstances, but instead contended that particular facts or developments simply couldn’t be legally considered as part of the court’s analysis, we have treated those questions as questions of law for which we give the district court’s ruling no appellate deference.
¶55 Our decision in Toone v. Toone, 952 P.2d 112 (Utah Ct. App. 1998), is illustrative. There, after a divorce had been finalized, federal laws regarding military pensions changed; and if those new laws were applied to the parties’ divorce, they would have allowed the ex-wife a larger share of her ex-husband’s military pension. See id. at 113–14. The ex-wife accordingly filed a petition to modify, asserting that the change in laws amounted to a change in circumstances that justified modification of the divorce decree. Id. We disagreed. See id. at 114. Notably, while reaffirming the rule that a district court’s “modification determination” is reviewed “for an abuse of discretion,” we regarded the particular question before us as being “a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.” Id.
¶56 Another case proceeded similarly. In Davis v. Davis, 2011 UT App 311, ¶ 6, 263 P.3d 520, we construed a party’s argument that certain events “could not be used as evidence” in the change-in-circumstances analysis as a legal question that we reviewed for correctness.
¶57This distinction, though perhaps subtle, is important, and it accords with how standards of review operate. The “primary function of a standard of review is to apportion power and, consequently, responsibility between trial and appellate courts for determining an issue.” State v. Levin, 2006 UT 50, ¶ 19, 144 P.3d 1096 (quotation simplified). In this sense, the standard of review determination “allocate[s] discretion between the trial and appellate courts” based on an assessment of “the relative capabilities of each level of the court system.” Id. (quotation simplified).
¶58 Again, the statute in question here requires a court to determine whether there was a material and substantial change in circumstances. See Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). The evaluation of whether a particular change was material or substantial enough calls for a weighing of facts and circumstances. District courts are in a better position than we are to do such weighing, which is why those ultimate determinations receive discretionary deference. But if a party instead makes a threshold argument that a particular kind of fact or development can’t legally be used in the weighing at all, that argument essentially asks us to establish the permissible boundaries of the district court’s discretionary decision-making authority. Such a question is legal in nature, which is why that aspect of the ruling is reviewed for correctness.
¶59 In her opening brief, Nicole argues that the change in circumstances identified by the district court “is not the sort of ‘change’ that justifies modification under Utah law.” (Emphasis added.) In her reply brief, Nicole similarly asserts that the district court “did not find[] changed circumstances that qualify under Utah law.” (Emphasis added.) She accordingly asks us to review the district court’s decision for correctness, rather than an abuse of discretion. So viewed, we don’t understand Nicole to be challenging the court’s weighing of the permissible facts. Rather, we understand Nicole to be making a legal argument about whether the court could even consider the change in relationship between Son and Bryant in the intervening years and Nicole’s subsequent, unilateral decision to cut off their parent-time as a material change in circumstances. Because her argument is legal in nature, we review this aspect of the ruling for correctness.
D. The Change in Circumstances
¶60 Properly understood, the question, then, is whether the change in circumstances identified above can legally qualify as a change in circumstances under Utah law. We conclude that it can.18
¶61 As noted, the statute requires a determination that “a material and substantial change in circumstance has occurred.” Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). A chief “goal” of this required determination is to give children “some measure of certainty and stability” after their parents or guardians have separated. In re E.H., 2006 UT 36, ¶ 2, 137 P.3d 809. Indeed, the supreme court has suggested that children are “entitled” to “permanence and stability” moving forward. Id. ¶ 16.
¶62 For good reason. The “emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability in the child’s relationships to important people and to its environment.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). Both the supreme court and this court have recognized that stability is paramount with respect to “custody arrangements.” Hogge, 649 P.2d at 54; see also Kramer v. Kramer, 738 P.2d 624, 626 (Utah 1987) (recognizing that “stable custody arrangements are of critical importance to the child’s proper development”); Taylor v. Elison, 2011 UT App 272, ¶ 22, 263 P.3d 448 (recognizing the “general policy of maintaining custodial stability to the extent it is reasonable and wise to do so while [a child’s] parents seek to resolve their differences” and that “it is generally in the best interests of the child to remain with his or her existing custodial parent”).
¶63 This stability interest is one of the driving forces behind the change-in-circumstances requirement, which “provide[s] stability to children by protecting them from ‘ping-pong’ custody awards.” Chaparro v. Torero, 2018 UT App 181, ¶ 39, 436 P.3d 339 (quotation simplified). “Absent such a requirement, a decree of divorce would be subject to ad infinitum appellate review and readjustment.” Foulger v. Foulger, 626 P.2d 412, 414 (Utah 1981). Thus, the understood “rationale” for this requirement is “that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed.” Kramer, 738 P.2d at 627 (quotation simplified).
¶64 But this leads to the problem that the district court was confronted with here. Again, the parent-child relationship between Bryant and Son had existed since birth, had solidified in the several-year period after the divorce, and had just now been officially recognized as a matter of law. Despite this, Nicole had recently invoked her authority under the Decree to cut off Bryant’s access to Son entirely, thus amounting to something akin to complete custodial interference.
¶65 The legislature, however, has recognized that “each divorcing, separating, or adjudicated parent is entitled to . . . frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interest,” Utah Code Ann. § 30-3-32(2)(b)(ii) (Supp. 2021) (emphases added), and that, absent evidence of abuse or harm to the child, “it is in the best interests of the child to have both parents actively involved in parenting the child,” id. § 30-3-32(2)(b)(iii) (emphasis added). True, such relationships can be altered or even severed by operation of law. But here, the Decree was the product of a stipulation, not a court determination, and no court has ever determined that it was not in the best interests of Son to have a relationship with Bryant.
¶66 Given that Bryant has now been adjudicated to be Son’s father, we believe that the court could legally conclude that this change, coupled with Nicole’s concomitant attempt to undermine their ability to have any relationship at all, warranted a modification of the Decree to protect the father-son relationship moving forward.
¶67 Nicole, however, resists this conclusion. She argues that her decision “to allow (or not allow) parent-time” is not “the type of change in circumstances that justifies modification under Utah law.” We disagree.
¶68As a starting point, we note that Nicole’s argument has no support in the controlling statutory text. Section 30-3-10.4(2)(b)(i) requires a court to find that “a material and substantial change of circumstance has occurred.” There is nothing in the text of this statute that creates the limit suggested by Nicole—i.e., the statute doesn’t prevent a district court from concluding that a custodial parent’s efforts to cut off a years-developed relationship between a child and the noncustodial parent qualifies as such a change.
¶69Nicole nevertheless points to two cases that, in her view, support her proposed limitation. But we don’t find either case to require a different result here.
¶70 First, Nicole relies on a passage from Doyle in which the supreme court “adopted a general rule” under which “the asserted change” in circumstances must be related to the “parenting ability or the functioning of the presently existing custodial relationship,” rather than the “parenting of the noncustodial parent.” 2011 UT 42, ¶ 41 (quotation simplified).
¶71 But while Doyle referred to this as a “general rule,” it never said it was an “exclusive” one. Indeed, in the very next sentence, Doyle recognized “an exception to the general rule” that was based on a prior Utah case. Id. Doyle itself thus shows that this “general rule” is subject to judicially recognized exceptions.
¶72Moreover, section 30-3-10.4(1)(a) itself provides that, in a petition to modify, the petition or affidavit must “allege[] that admissible evidence will show that the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified.” (Emphasis added.) By allowing a modification to be based on a change in the circumstances of “the child or one or both parents,” the legislature directly contemplated that a change in circumstances of any of the parties—the child or either parent—can provide the basis for a modification. So while Doyle’s statement provides some guidance, we do not understand it to be an inviolable limitation of the sort proposed by Nicole.
¶73 Second, Nicole claims that in Crouse v. Crouse, 817 P.2d 836 (Utah Ct. App. 1991), we adopted a rule under which a noncustodial parent’s strengthened relationship with a child cannot qualify as a change in circumstances for purposes of a subsequent modification request. We disagree with Nicole’s interpretation of Crouse.
¶74 In Crouse, the mother had been given primary physical custody of the children after the divorce, but she had then allowed the children to “spen[d] almost equal time” with their father in the ensuing years. Id. at 837. Based in part on this allowance of extra time, the father later requested a modification of the decree to give him “primary physical custody” over the children. Id. The district court denied his modification request, and we affirmed that decision. Id. at 837, 840.
¶75Nicole points to a passage from our affirmance in which we recognized that the “fact that Mrs. Crouse has been generous in sharing physical custody with Mr. Crouse is not a ground to change physical custody; if anything, it supports leaving primary physical custody with Mrs. Crouse, as it shows that she has lived up to the responsibilities of a custodial parent.” Id. at 839.
¶76In contrast to Nicole, however, we don’t read this passage as having determined that, as a matter of law, a district court cannot consider such facts in its analysis. It’s significant that we were affirming the district court’s denial of a petition to modify in Crouse. It’s also significant that the same section of the opinion began with a reminder that a “trial court’s decision concerning modification of a divorce decree will not be disturbed absent an abuse of discretion,” id. at 838, and that we then referred to the court’s “discretion” three more times in that section, id. at 838– 39. Thus, properly understood, Crouse was not establishing rules about the facts that a court could legally consider. Rather, Crouse was giving deference to the district court’s determination that the facts before it were not enough to satisfy the requisite standard.
¶77 Moreover, we also note that the district court’s use of its discretion in Crouse was consistent with the understood purpose behind the change-in-circumstances requirement. The mother there had originally been awarded primary physical custody, and after she let the children “spen[d] almost equal time” with their father over a period of a few years, the father asked the court to grant him “primary physical custody” as a result. Id. at 837. In this sense, the father’s request, if granted, would have created instability in the children’s lives by changing their primary caregiver.
¶78 The opposite is true here. Again, Bryant had acted as Son’s father since birth. After Nicole then allowed Son to continue developing this relationship with Bryant over the course of several post-divorce years, Nicole changed her mind and decided to cut off their relationship, thus essentially leaving Son fatherless. Put simply, the effect of our decision here is consistent with Crouse, not inconsistent with it. There, we affirmed a district court decision that preserved stability in the children’s lives. And here, we’re likewise affirming a district court decision that preserved stability in the affected child’s life.
¶79 In sum, the statute does not impose the limitation proposed by Nicole, and we think that doing so ourselves would be inconsistent with Utah caselaw, the importance of parent-child relationships, the protections given to those relationships by constitution and statute alike, and the modification statute’s recognized goal of promoting stability in children’s lives. We therefore conclude that a district court can legally determine that a unilateral attempt by a custodial parent to sever a child’s years-developed relationship with his or her noncustodial parent can constitute a substantial and material change in circumstances, thereby allowing the court to proceed to the best interests step of the modification analysis. We accordingly affirm the district court’s conclusion that a change in circumstances occurred here.
¶80 Having done so, we add two cautionary notes to this decision. First, Nicole suggests that a ruling like this one will essentially penalize a custodial parent for being generous with the noncustodial parent’s ability to exercise parent-time. We’re sensitive to this concern. But again, a district court can’t proceed to the best-interests step of the analysis based on just any change in circumstances. Rather, the court must first determine that the change is “material and substantial.” Utah Code Ann. § 30-3-10.4(2)(b)(i). Whether a particular increase or decrease in parent-time is enough to qualify will be circumstance-dependent, and we have no need to more specifically cabin the district courts’ discretionary authority here. But in light of Nicole’s concern, we do note that the change in question in this case was from something akin to 30% of the time to 0%. We’re simply holding that a court can regard such a dramatic alteration of the existing parent-child relationship to be a material and substantial change in circumstances.
¶81 Second, we again note that, even when a district court concludes that a change in circumstances has occurred, this does not mean that the court must modify the decree. Again, this is a two-step analysis, and under the second step, a court can only modify a decree if it finds that the modification “would be an improvement for and in the best interest of the child.” Id. § 30-3-10.4(2)(b)(ii). Thus, even in a circumstance like this one, a district court could still determine that modification is not appropriate if it concludes that the proposed modification would not be in the best interests of the child.
¶82 In this sense, our decision today does not restrict the district courts’ options. Rather, it keeps them open. We simply hold that, in a case like this one, a district court can determine that a material and substantial change in circumstances has occurred—not that it must, and not that it must then make any particular ruling regarding the best interests of the child.19
CONCLUSION
¶83 For the foregoing reasons, we affirm the district court’s decision to give Bryant joint legal and physical custody of [decision ends here inexplicably].
Utah Family Law, LC | divorceutah.com | 801-466-9277
BRADLEY HINDS,
Appellee,
v. RACHEL HINDS-HOLM,
Appellant.
Opinion
No. 20200586-CA
Filed January 27, 2022
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 174905091
Theodore R. Weckel, Attorney for Appellant
Jonathan G. Winn, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
MORTENSEN, Judge:
¶1 Bradley Hinds (Father) and Rachel Hinds-Holm (Mother) married and had a son (Child). After the parties divorced, the district court awarded custody of Child to Father. Mother challenges the court’s discretion in weighing the statutory custody factors and the court’s denial of her motion to continue the trial. We affirm.
¶2 Father and Mother married in May 2015. Within a few weeks of the wedding, they experienced marital difficulties, and Mother left the family home. But after discovering Mother was pregnant, the parties reconciled, and Child was born in February 2016.
¶3 Father, who was in the military, was transferred to New Mexico, where Mother and Child joined him. For a period of about fifteen months, Mother and Father shared the parental duties of raising Child. However, Father contended that Mother interfered in his relationship with Child by not including him in medical decisions, not supporting his family’s relationship with Child, and giving contact with her mother (Grandmother) priority over his involvement with Child.
¶4 In June 2017, Father reported an incident of domestic violence. Father alleged “that he was physically assaulted by [Mother] and [Grandmother] resulting in a bruise on his arm, that he called the police, that base personnel intervened, and that the incident was investigated as domestic violence perpetrated by [Mother].” Mother claimed that “she was yelled at and verbally abused by [Father] during that episode.” While the report from the military labeled Mother as the perpetrator, it determined that the incident “did not meet the criteria for physical maltreatment and entry into” the military’s database. (Cleaned up.)
¶5 Mother then left New Mexico with Child to live with Grandmother in Utah. Thereafter, Father had difficulty reaching Mother and was unable to have contact with Child until September 2017, shortly after he filed for divorce in Salt Lake City, Utah. Under a temporary custody agreement reached by the parties and approved by the court, Mother was awarded sole physical custody, and the parties shared joint legal custody. Pursuant to this arrangement, “[t]he parties were ordered to cooperate with each other in terms of making decisions about the minor child, his health care, his education, and other decisions relating to the parties’ joint exercise of legal custody.”
¶6 However, on at least two occasions, Mother “declined to follow either something she and [Father] agreed to or something she was ordered to do by” the court commissioner. In December 2017, Father filed for an order to show cause in which he raised multiple issues regarding payment of certain expenses and Mother’s failure to follow court orders about joint custody arrangements.
¶7 In early April 2018, the parties attended mediation but were unable to reach an agreement. About a week later, Mother’s first attorney withdrew “as a result of [Mother’s] conduct that appear[ed] to be in bad faith.”
¶8 Mother hired a second attorney, and the parties attended a hearing on Father’s first motion for an order to show cause in May 2018. The court commissioner ruled in Father’s favor, ordering Mother to, among other things, involve Father in daycare and medical decisions regarding Child and to follow parent-time orders.
¶9 In September 2018, the commissioner ruled in Father’s favor on a second motion for an order to show cause, which also concerned matters of parent-time and shared expenses. In that order, the commissioner warned Mother about the consequences of future violations: “The Court admonishes [Mother] that if a third Order to Show Cause is raised before the Court for her inability to facilitate [Father’s] ordered parent-time, the Court will sentence [Mother] to five days of jail for every count of contempt for parent-time which is missed.” The commissioner also ordered Mother to respond to all discovery requests.
¶10 In September 2018, Mother’s second attorney withdrew as counsel. That attorney stated that she was “incredibly frustrated” with Mother and Mother was “acting in bad faith.”
¶11 Later that month, the court ordered that a custody evaluation be conducted by a licensed clinical social worker (Evaluator). The court ordered the parties to “cooperate as reasonably requested by” Evaluator, including participating in appointments and “[s]ubmission of any documents, names of collateral contacts, and other pertinent material for review during the first month of the evaluation process.” Mother did not comply with the evaluation order. Specifically, she (1) did not timely return the completed evaluation agreement; (2) did not timely provide the initial parenting questionnaire; (3) did not fully complete the parenting questionnaire when she did return it; (4) was dismissive concerning the information requested by Evaluator; (5) provided no helpful information by merely answering “yes” or “no” to Evaluator’s questions or by telling Evaluator, “Ask [Father], this is [Father’s] responsibility not mine”; (6) was slow in providing information; and (7) failed to provide Evaluator all the information requested.
¶12 In December 2018, Mother hired a third attorney for the limited purpose of “settling and preparing the final documents.”
¶13 In May 2019, as relevant here, the commissioner certified for trial the determination of physical custody, legal custody, and parent-time. The commissioner also heard Mother’s request to reopen discovery to appoint a rebuttal expert to Evaluator, but the commissioner “declined to rule on it and reserved the issue to be raised by [Mother] before” the judge. Moreover, the commissioner ordered Mother to “complete the outstanding discovery requests,” as the commissioner had ordered in September 2018, and “provide her responses” to Father within twenty-one days. Subsequently, the parties agreed to proceed by informal trial, see Utah R. Jud. Admin. 4-904, and the matter was referred back to the commissioner. A trial was scheduled for September 4, 2019.
¶14 In August 2019, Father filed a third motion for an order to show cause, alleging that Mother was not observing ordered parent-time and had failed to include Father in medical decisions. On August 28, Mother requested that the trial be continued, which the commissioner granted, resulting in a new trial date of November 5. In early September, Mother informed the commissioner that she no longer agreed to the informal trial, and the commissioner recommended that the parties contact the district court for a trial date. Mother’s third attorney withdrew in January 2020.
¶15 After the court scheduled a trial for March 9, Mother hired a fourth attorney on February 11. But he moved for permission to withdraw just fifteen days later, stating, “This withdrawal is done at the request of [Mother], her having knowledge of pending trial date on March 9, 2020. There has been a complete breakdown of attorney-client relationship which makes it impossible for counsel to be provided. [Mother] has indicated that she is planning to represent herself Pro Se at trial.” On February 27, the court entered an order granting the motion, stating that the pending trial of March 9 would not be continued.
¶16 On the morning of trial, Mother, proceeding pro se, informed the court that she had filed a motion to continue on February 26 but that the court clerks informed her that the motion had never been received. She then made an oral motion to continue so that she could retain counsel. The judge noted that Mother’s fourth attorney “represented . . . that [Mother] wanted him to withdraw, that it was at [Mother’s] request that he was withdrawing, . . . that [Mother] understood that the trial would not be continued, and that [Mother] understood that [she] would be representing [herself] at the trial.” Mother responded that when she asked him to withdraw, she thought she would still “be able to have [someone] that would be able to advocate and be there for” her. The court denied the motion.
¶17 At trial, as a threshold matter, the parties agreed that a joint custody arrangement “was not feasible” or in Child’s best interest. Thus, Mother and Father differed only as to which of them should receive sole legal and physical custody. Because the parties lived more than 1,000 miles apart and had an acrimonious relationship, the court determined that joint custody was, indeed, not feasible.
¶18 The court heard testimony from Father, Mother, and Evaluator. Evaluator provided extensive testimony concerning the best interest of Child in light of the statutory factors. Evaluator opined it was in Child’s best interest for Father to be awarded sole legal and physical custody of Child, with Mother receiving parent-time.
¶19 The court was “persuaded” (1) that Evaluator “did a thorough and careful evaluation that included an appropriate analysis of all the pertinent factors” and (2) “by a preponderance of the evidence that [Evaluator’s] expert opinions [were] in the best interests of the minor child in this case.”
¶20 In reaching the conclusion that it was in Child’s best interest that Father be awarded sole legal and physical custody, the court noted that it had not “delegate[d] decision-making responsibility” to Evaluator but had conducted “an independent analysis on the custody factors” set forth in Utah Code section 30-3-10(2) and applied “the evidence presented at trial” to arrive at a determination of Child’s best interest. The court then proceeded to address the custody factors.
¶21 The court found the following factors weighed in favor of Father:
· Domestic violence, see Utah Code Ann. § 30-3-10(2)(a) (LexisNexis 2019): Despite the evidence being in dispute, the court determined that this factor weighed in favor of Father based on Father’s resulting injury, military documents listing Mother as the perpetrator, and Evaluator’s investigation into the incident.
· Developmental needs of Child, see id. § 30-3-10(2)(b): Even though both parties unquestionably loved Child, the court reasoned that this factor weighed in favor of Father because evidence was presented that Mother was “not interested in [Child] having an emotional father-son attachment to [Father], and to [the] contrary [had] taken steps to prevent or interfere with such an attachment.” The court noted that there was no evidence that Father “would interfere” with Child’s relationship with Mother. The court concluded that it was “manifestly in [Child’s] best interests to have an emotional bond and supportive parent-child relationship with both parents” and that goal was more likely to be achieved if custody was awarded to Father than if it was awarded to Mother.
· Parent’s capacity and willingness to function as a parent, see id. § 30-3-10(2)(c): Overall, this factor weighed “very strongly” in favor of Father. The court agreed with Evaluator that if Father “were awarded sole custody, he would cooperate better in terms of facilitating parent-time with [Mother] than she would in facilitating parent-time with him.” The court also found that there had “been a frustrating pattern throughout the pendency of this action of [Mother] agreeing to do things, or being ordered to do things, and then almost immediately refusing to follow through with agreements she made or Court orders she was given.”
· Wishes and concerns of Child, see id. § 30-3-10(2)(p): While Mother tried to portray in her testimony that Child did not like Father, the court expressed concern that any dislike Child had toward Father was “the product of [Mother] instilling negative feelings in the mind of [Child] against [Father].” And given the court’s impression that Mother was attempting to manipulate Child, it found that this factor militated in favor of Father.
· Any other relevant factor, see id. § 30-3-10(2)(r): This factor tilted to Father, the court concluded, because if Father was “awarded sole legal and physical custody, he [would] likely cooperate to the extent necessary to ensure that [Mother had a] bond and relationship with [Child].” “But based on [Mother’s] pattern of behavior throughout this action,” the court found it was “more likely than not that if sole legal and physical custody were to be awarded to [Mother], she would not cooperate to support the parent-child relationship and bond between [Father] and [Child].” And because it was “in [Child’s] best interest to have a bond with both parents, and since joint custody [was] not feasible,” the court found that the best way to ensure Child’s best interests were protected was “by awarding [Father] sole legal and physical custody with [Mother] to enjoy parent-time.”
¶22 The court found the following factors weighed in favor of Mother:
· Child’s interaction and relationship with extended family, see id. § 30-3-10(2)(l): This factor weighed in favor of Mother because Child had a “strong relationship” with Grandmother.
· Parent who has been the primary caretaker, see id. § 30-310(2)(m): This factor weighed in favor of Mother because she had primary custody during temporary orders.
· Child’s bond with parent, see id. § 30-3-10(2)(q): “This factor [did] not strongly militate for or against either parent” but “[t]o the extent that [Mother had] been the primary caretaker under the temporary orders, this factor would likely militate in her favor.”
¶23 The court concluded these factors favored neither party:
· Past conduct and moral character of the parent, see id. § 30-3-10(2)(d): The court noted that while evidence of Mother’s prior criminal convictions was presented, those convictions had, according to Mother, been expunged, and Father had presented no evidence to the contrary. Stating that it would not consider expunged charges, the court determined this factor weighed in neither party’s favor.
· Relinquishment of custody or parent-time, see id. § 30-310(2)(h).
· Duration and depth of desire for custody or parent-time, see id. § 30-3-10(2)(i).
· Religious compatibility with Child, see id. § 30-3-10(2)(j).
· Parent’s financial responsibility, see id. § 30-3-10(2)(k).
· Happiness of Child in previous parenting arrangements, see id. § 30-3-10(2)(n).
¶24 After weighing these factors, the court entered the divorce decree, awarding Father sole legal and physical custody and Mother parent-time as set forth by Utah Code section 30-3-37(6).
¶25 Two days after the trial, Mother’s fifth attorney entered a limited appearance to assist Mother with filing a rule 52 motion[2] to amend the findings of fact and conclusions of law and a rule 59 motion[3] for a new trial. The court denied both motions, ruling Mother raised nothing in them “that she could not have raised earlier” and that they were “impermissible motions to reconsider” lacking “substantive merit.” Mother appeals.
ISSUES AND STANDARDS OF REVIEW
¶26 Mother asserts that the district court erred in applying the statutory custody factors and Utah case law when it found that it was in the best interest of Child to award Father full custody. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” Nebeker v. Orton, 2019 UT App 23, ¶ 15, 438 P.3d 1053 (cleaned up). And “we will not disturb the district court’s judgment unless we determine the district court has exceeded the scope of permitted discretion or has acted contrary to law.” Id. (cleaned up).
¶27 Mother also alleges that she was denied the right to a fair trial when the district court denied her motion to continue the trial. “We review a trial court’s decision on a motion to continue for an abuse of discretion.” Vaughan v. Romander, 2015 UT App 244, ¶ 6, 360 P.3d 761. “Indeed, courts have substantial discretion in deciding whether to grant continuances, and their decisions will not be overturned unless that discretion has been clearly abused. Stated differently, a district court’s denial of a motion to continue is an abuse of its discretion only if its decision is clearly unreasonable and arbitrary.” Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76 (cleaned up).
ANALYSIS
I. Custody Determination
¶28 Mother first challenges the award of full custody to Father, arguing that the district court misapplied Utah common law in weighing the factors.[4] We disagree with Mother.
¶29 In the context of determining custody, the court analyzes the child’s best interest through the factors found in Utah Code section 30-3-10(2) in light of the evidence. “Generally, it is within the trial court’s 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.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. The “court’s discretion stems from the reality that in some cases the court must choose one custodian from two excellent parents, and its proximity to the evidence places it in a more advantaged position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). Thus, a custody determination “may frequently and of necessity require a choice between good and better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982).
¶30 While the district court is accorded discretion in weighing these factors, “it must be guided at all times by the best interests of the child,” see Tucker, 910 P.2d at 1214, and it “must set forth written findings of fact and conclusions of law which specify the reasons for its custody decision,” see id. at 1215. And “[w]henever custody is contested, the district court must provide the necessary supporting factual findings that link the evidence presented at trial to the child’s best interest and the ability of each parent to meet the child’s needs.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 27, 414 P.3d 933.
¶31 Here, the district court clearly operated within the above framework in reaching its custody decision. The court found the evidence supported the conclusion that Father was better able to meet the developmental needs of Child. See Utah Code Ann. § 30-3-10(2)(b) (LexisNexis 2019). Specifically, the court focused its attention on each parent’s relative ability to co-parent Child. It determined that persuasive evidence was presented to show that Mother was “not interested in [Child] having an emotional father-son attachment to [Father], and to [the] contrary [had] taken steps to prevent or interfere with such an attachment.” As evidence of this tendency, the court pointed to Mother’s testimony and closing arguments:
[Mother] went out of her way several times to tell the Court that [Child] did not like to be around [Father], and that [Child] would act up when it was time to transition to [Father]. It was clear from [Mother’s] testimony that she believed it was an appropriate response to such perceptions to interfere with [Father’s] access to [Child], including interfering with his parent time, and that she . . .
believed such interference was appropriate even in the face of court orders if her perception as [Child’s] mother was that . . . she should keep him from [Father].
¶32 The court also noted that Mother regularly referred to Father by his first name when speaking about him to Child rather than referring to him as Child’s father. The court concluded that “[i]t was evident” that Mother’s testimony “was an effort to suggest that this four-year-old child had a preference for her over [Father].” In addition, the court noted that there was “ample evidence” that Mother had “interfered significantly” in Child’s relationship with Father by “a pattern of misbehavior, violating the orders of the court, and not cooperating with the custody evaluation.” In contrast, the court found “there was no evidence” that Father “would interfere” with Child’s relationship with Mother.
¶33 The court observed that if Mother was truly “looking out for the emotional needs” of Child, she “would make efforts to ensure [Child had] a strong emotional bond and parent-child relationship with both parents.” Based on this evidence, the court concluded,
[T]here is a strong reason to believe [Child] can have an appropriate parent-child relationship with [Mother] if custody of [Child] is awarded to [Father]. But there is an equally strong reason to believe that [Mother] will prevent [Child] from having any such relationship with [Father] if custody is awarded to [Mother]. This is apparent from the pattern of intransigence and noncompliance with Court orders, particularly regarding parent time, that [Mother] has demonstrated during the pendency of this action. It is manifestly in [Child’s] best interests to have an emotional bond and supportive parent-child relationship with both parents, and that goal is more likely to be achieved if custody is awarded to [Father] than if custody is awarded to [Mother].
¶34 With regard to each parent’s capacity and willingness to function as a parent, see id. § 30-3-10(2)(c), the court concluded that this factor overall weighed “very strongly” in favor of Father. As evidence, the court cited the “frustrating pattern throughout the pendency of this action of [Mother] agreeing to do things, or being ordered to do things, and then almost immediately refusing to follow through with agreements she made or Court orders she was given.” This pattern led the court to not being “persuaded that [Mother] would cooperate with [Father] having a parent-child relationship with [Child].” Thus, the court concluded that it was in Child’s best interest for Father to have sole custody because “he would cooperate better in terms of facilitating parent-time with [Mother] than she would in facilitating parent-time with him.”
¶35 One overarching concern of the court in weighing the factors was that it was in the best interest of Child “to live in a situation that maximizes the probability that he will maintain a strong bond and a productive and healthy relationship with both parents.” And “[b]ased on the evidence that was presented at trial,” the court found that if Father was awarded sole legal and physical custody, he would “likely cooperate to the extent necessary to ensure” Mother would have a bond and relationship with Child. But the same could not be said if Mother was awarded sole custody. On the contrary, based on her pattern of behavior, the court found it “more likely than not” that she would not cooperate in fostering a parent-child relationship and bond between Father and Child.
¶36 The court in this case “had to choose between two good parents,” but one of those parents—Mother—had consistently
manifested behavior that suggested she would not support or nurture Child’s relationship with Father. See Hudema v. Carpenter, 1999 UT App 290, ¶ 38, 989 P.2d 491; see also Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996) (“Often, when there are two equally suitable parents, the trial judge may be compelled to base a custody award upon observations of the parents in court, the reactions of the child to each parent, or other factors. A trial court need not find one parent inadequate before awarding custody to the other.”). So even though certain factors weighed slightly in Mother’s favor, see supra ¶ 22, “we must defer to the trial court’s broad discretion and affirm its conclusion that [Child’s] interests would best be served by awarding [Father] primary physical custody,” see Hudema, 1999 UT App 290, ¶ 38. In other words, the court did not abuse its discretion in concluding that it was in Child’s best interest to live with the parent who would most likely ensure that he would have a strong bond and healthy relationship with both parents and that this goal would best be achieved by awarding Father sole legal and physical custody.
II. Motion to Continue
¶37 Mother next argues that she was denied the right to a fair trial when the district court denied her motion to continue the trial.
¶38 “Courts have substantial discretion in deciding whether to grant continuances, and their decisions will not be overturned unless that discretion has been clearly abused.” Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76 (cleaned up). Stated another way, “we will conclude that a trial court has abused that discretion only if the decision to grant or deny a continuance is clearly unreasonable and arbitrary.” Vaughan v. Romander, 2015 UT App 244, ¶ 10, 360 P.3d 761 (cleaned up).
¶39 Mother has not shown that the district court abused its discretion in denying her motion to continue. In no way did the court act unreasonably or arbitrarily in coming to its decision. In Layton City v. Longcrier, 943 P.2d 655 (Utah Ct. App. 1997), this court adopted a five-prong test to determine whether a district court acted reasonably in denying a motion to continue: (1) “whether other continuances have been requested and granted”; (2) “the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court”; (3) “whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived”; (4) “whether the [requesting party] contributed to the circumstance which gives rise to the request for a continuance”; and (5) “whether denying the continuance will result in identifiable prejudice to [the requesting party’s] case, and if so, whether this prejudice is of a material or substantial nature.” Id. at 659. We address each factor in turn.
¶40 First, Mother had already received one continuance and one extended period of time following her revocation of consent to an informal trial. While the transitory time between the second scheduled informal trial in November and the March trial date did not result from an express continuance, as a functional matter, granting this motion would have effectually resulted in a third continuance; so the first factor supports a determination that the court acted reasonably in denying the motion.
¶41 Second, granting the motion, which was made on the morning of the trial, would have resulted in significant inconvenience. Father had taken time off work and traveled from New Mexico to be present at trial. Evaluator was also present, and Father had paid her for her time. Mother had also been notified of the trial date and was present in court. So apart from her lack of counsel, she faced no inconvenience in proceeding—other than her desire not to.
¶42 Third, Mother had displayed a pattern of dilatory behavior throughout the proceedings, and the court could have reasonably concluded that her request for a continuance was yet another manifestation of this tendency.
¶43 Fourth, Mother’s action of firing her fourth attorney constituted the very circumstance that gave rise to the putative reason (namely, to hire another attorney) for requesting the third continuance.
¶44 Fifth, and most importantly, Mother was not prejudiced by the denial of the motion. Indeed, the court noted that Mother
was well prepared and represented herself quite effectively at trial, despite not ultimately convincing the court to rule in her favor. She had done research into relevant legal and factual issues. She represented herself tenaciously while still following the procedural rules set forth by the court. She cross-examined witnesses, testified, and presented arguments effectively. . . . Overall, the court’s impression of [Mother’s] performance at trial was that she had successfully deployed evidence and argument to present her strongest possible case to the court, albeit not a case that ultimately prevailed. In light of this, and considering that [Mother’s] inability to present an expert witness at trial was due to decisions by [her] prior counsel not to designate an expert and not due to the court’s refusal to grant a continuance, the court [was] hard-pressed to conclude that counsel could have secured a better result for [Mother] at trial than she secured for herself.
Thus, this final factor also supports the conclusion that the district court acted reasonably in denying the motion. See State v. Wallace, 2002 UT App 295, ¶ 37, 55 P.3d 1147 (“Unless a defendant shows that denial of the continuance had a material [e]ffect on the outcome of the trial, thereby demonstrating prejudice, the trial court’s decision would not constitute an abuse of discretion.”).
¶45 Mother had already effectively received two continuances, and granting a third would have disproportionately inconvenienced Father. Moreover, Mother had a pattern of delaying the custody proceedings and had occasioned the need for a third continuance by her own actions. Finally, there is no evidence that Mother would have received a more favorable outcome had the continuance been granted. Under these circumstances, we conclude that the district court did not abuse its discretion in denying Mother’s motion on the morning of the trial.
III. Attorney Fees on Appeal
¶46 Father requests attorney fees incurred pursuant to this appeal. “Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal.” Wollsieffer v. Wollsieffer, 2019 UT App 99, ¶ 11, 446 P.3d 84 (cleaned up). But that is not the case here. The court awarded attorney fees below relative to the two orders to show cause, which are not the subject of this appeal. Because Father prevails on separate issues on appeal (namely, the award of custody and the denial of Mother’s motion to continue), he is not entitled to fees incurred on appeal.
CONCLUSION
¶47 We see no abuse of discretion in the district court’s weighing of the statutory factors in reaching its decision to award custody to Father. We also conclude that the court did not abuse its discretion in denying Mother’s motion to continue. And we decline to award Father attorney fees incurred on appeal. Affirmed.
The question was asked: In a study in 2012 proved many custody evaluators falsely believe most DV victims lied & alienated kids. So How do you prevent that evaluators report from poisoning all reports or evaluators after, since they always review historical reports?
This is a great question, but not for the reasons you may believe.
The problem isn’t the errors the evaluators make (as if to suggest that all that is needed is for the evaluators to get more accurate, as if that is even realistically possible). The problem lies in being so trusting of custody evaluators’ recommendations for child custody and visitation (also known as parent time) decisions. These so-called experts are little better than a coin toss when it comes to getting to the truth not only about spousal and/or child abuse allegations but about virtually any factor affecting the child custody and parent time award.
It’s not really a matter of trust. It’s a matter of analytical and jurisprudential sloth, a matter of passing the buck to so-called experts who aren’t really experts, whose involvement helps get to truth and sound understanding no better than than does their absence in the custody and parent time analysis.
Utah Family Law, LC | divorceutah.com | 801-466-9277