If parties have an existing support or custody judgment, unless both parties agree to change the terms of the judgment, one of the parties must prove to the court that there has been a “substantial change of circumstances” that justify modifying an existing and valid judgment. Such a standard has been set because the court favors stability and continuity in valid judgments and agreements. If there were no standard to modify custody or support judgments, family courts would be flooded with parents wanting to change the terms of their agreements without there being a true need for the change. Thus, the requesting party must show that a change is justified.
Common “substantial changes in circumstances” may include: a loss or gain of employment, a sudden change in either party’s finances, a relocation of the parties or children, a death, a change in the child’s wishes, etc. These are just a few examples of common changes of circumstances that warrant a modification of a judgment. This list however is not exhaustive and determining whether a change to a judgment should be granted is a question of fact that will depend on the facts of each individual case. Modifying an existing custody or support judgment can be complicated and time consuming. Because such issues are also of vast importance, it is best to hire an experienced attorney who can help guide you through these difficult times.
Change of Circumstances
A change of circumstances refers to the showing required by a party seeking to modify a prior child support, spousal support, or custody order. Generally, the change in circumstances must be substantial in nature and due to facts that were unknown or unanticipated when the prior order was issued. In the context of child or spousal support awards, the change of circumstances must relate to the financial needs of the recipient or the financial abilities of the payor. Utah for example, allows a support order to be increased or decreased upon a specific showing of material and substantial change in circumstances regarding a party’s income. When modifying timesharing orders, courts may take into account other non-financial circumstances that affect the child’s best interests. Utah specifies that final timesharing orders will only be modified when there has been a change in circumstances such that a new arrangement is best for the child.
A parent or child’s circumstances will often change after a court issues an order on child custody. Maybe you have a new job opportunity in another city. Maybe your former spouse remarried and there are problems between your child and the new step-parent. Maybe the other parent simply isn’t giving you the time you are entitled to have with your child. When these situations arise, a parent wants to know how they can go about changing that custody order. The legal process is called a Modification.
Substantial Change in Circumstances
Whenever a former spouse wishes to modify a ruling in their divorce, the phrase always referenced is whether there is a “substantial change in circumstances.” However, not many people know exactly what counts as a substantial change in circumstances and what it looks like in practice when applied to different issues in a divorce.
What Does It Take to be a Substantial Change?
In Utah, the courts have defined a “substantial change in circumstances” to be one that is significant, material, involuntary, and permanent in nature. The situation could not have been known about or considered at the time that the divorce ruling was made. Judges use the determination of whether a situation rises to the level of a substantial change in circumstances when deciding whether to allow modifications in multiple significant area of divorce decrees including spousal support, child custody, and child support. However, not all areas of the divorce decree are modifiable. For example, property rights (i.e., equitable distribution) is not modifiable by the Court.
Substantial Changes for Spousal Support
In order to qualify as a substantial change in circumstances to modify a spousal support order, the courts have found that job loss, disability, or serious illness of the spouse paying support as well as a significant job promotion or cohabitation of the spouse receiving support all qualify. However, temporary job loss or a small demotion in pay likely do not qualify for the paying spouse, nor does a small cost of living increase for the recipient spouse likely qualify for a modification.
Substantial Changes for Parenting Issues
Utah courts have found that a parent suffering from new mental illness or substance abuse qualifies as a substantial change in circumstances for the purposes of parenting issues. Relocation to a new state or a significant distance away (more than 50 miles) that was not contemplated when the divorce was finalized also qualifies as a substantial change for modification. However, small moves within fifty miles likely do not qualify as a substantial change to modify an existing timesharing plan.
Substantial Changes for Child Support
Finally, many of the same circumstances that apply as a substantial change for spousal support also qualify for modifying child support orders. In addition, the disability or illness of the child qualifies as a substantial change in addition to the responsibility of new children by the parent paying support. Depending on your life circumstances, you can petition the court to make changes to the parenting plan and timesharing schedule that was originally agreed upon to suit your current family dynamic. There are many reasons in which a modification of the original parenting plan is necessary, including but not limited to:
The parenting plan and timesharing schedule are no longer feasible for the parents (e.g. work schedule change, remarriage, new siblings);
• Either parent needs to relocate;
• A parent becomes disabled and / or incapacitated;
• Issues involving the child’s education;
• Issues involving the child’s healthcare;
• Either parent changes jobs or careers;
• Issues relating to substance abuse by a parent;
The Legal Standard For Modifying Timesharing
In order to modify a timesharing order in Utah, the party requesting the modification must show two things.
First, the party must show that there is a “substantial and material” change in circumstances of the child or one of the parents. Second, the parent must show that the modification the parent requested is in the best interests of the child. This also means that a court has significant discretion in deciding whether or not the substantial and material change standard is met.
Whose Circumstances Changed And When?
A change in circumstances of any one of the parents or the child can be the basis of the modification. In order to show the change in circumstances, the party requesting the modification must demonstrate the circumstances at the time of the original order as well as the change in those circumstances that exists at the time the party requests the modification. Put more simply – you must show what has changed since the court entered the original order and you must show that it is a substantial and material change in circumstances.
What are Some Examples of Substantial and Material Changes In Circumstances?
Below are some examples of situations courts found to be a substantial and material change in circumstances of one of the parties:
• Remarriage of a party (in some circumstances);
• One parent attempting to impair or interfere with the child’s relationship with the other parent;
• Changes in the home surroundings;
• Mistreatment of a child by a parent or a step-parent;
• A parents drug or alcohol abuse;
• Voluntary relinquishment of custody by one parent;
• A parent’s criminal conviction;
• A parent’s failure to comply with a cps family service plan;
• Taking a child out of state or denying possession;
• A parent’s relocation – depending on distance; and
• A child’s desires for which parent he or she wishes to live with.
No Change If It Was Contemplated In The Prior Order
One limit to the substantial and material change element is that the change cannot be a change in circumstances that was contemplated in the prior order.
For example, courts found that a child aging, alone, is not a substantial and material change. The parents obviously knew the child would continue to grow and age when they entered into the order, therefore, that the parents contemplated that fact at the time of the original order. This does not mean a child’s aging cannot be a factor in a modification, just that it cannot be the sole basis for the modification.
Another example is that potential changes in employment or residency when known or contemplated at the time of the prior order – cannot form the basis of a substantial and material change in circumstances.
Change must be in the Child’s Best Interest
And don’t forget the most important part of any modification case. The proposed change must be in the best interests of the child. This means that even if there has been a substantial and material change in circumstances, if the change you are requesting is not in the child’s best interest – then the court will deny the modification.
Can A Judge Modify A Time-Sharing Order Based On Possible Future Events?
When a Utah court establishes a time-sharing schedule for two parents, that order can only be modified later if there is proof of a “substantial, material, and unanticipated change in circumstances” that makes such a modification “in the best interests of the child.” A judge will consider a number of factors in making such a determination. But critically, the just must not engage in speculation. For example, the court is not supposed to play “what-if” and say that if certain conditions arise, that will automatically lead to the modification of a time-sharing schedule.
When You Can Change Your Time Sharing Plan
When you both agree on a new parenting plan. What is the easiest way to change your time sharing arrangement?
Find a schedule that satisfies both you and your co-parent. When you both agree on a change, modifying a time sharing arrangement can be an easy process. The only trouble comes when two parents are arguing over the right to see a child or to be the child’s custodial parent. After filing a protective order. If you or your child is in danger around your co-parent, you should call a lawyer immediately. You may have to file a protective order with the courts. Protective orders are temporary, but can provide emergency relief if you are feeling threatened by your ex. In the protection order, a judge may demand that custody of the child be handed over to the other parent, or grant sole custody until the protection order is lifted. In the past, a non-custodial parent would have to prove that a child staying with a parent would be “detrimental” to their well-being. Currently, in addition to “substantial” changes, you want to prove that this change in circumstances is a material change, and was unanticipated by either party.
The following situations could, hypothetically, fit all three of Utah’s guidelines for changing time sharing arrangements:
• The parent develops an addiction and cannot financially care for his or her child
• Moving out of the state without consulting the court
• The parent’s behavior caused a dramatic change in the child’s physical health, mental health, or overall wellbeing
• The parent consistently goes against the parenting plan developed when time sharing was initially decided
It is important to remember, though, that these terms are broad, and situations like the above examples do not guarantee a change in time sharing arrangements.
When are Changes Not Considered “Substantial?”
Changing time sharing arrangements is not as easy as changing child support or alimony payments. You cannot determine the best interests of a child with a calculator. In other words, while it is completely reasonable and possible to petition to modify your alimony or child support payments after getting a new job, this probably would not be enough to change time sharing plans. Even an isolated incident of domestic violence may not be enough to convince a judge that a time sharing arrangement should be modified.
With these broad guidelines, your best bet for getting the results you want is to contact a Utah family lawyer and make a serious case against your co-parent. The lawyer representing you can use his or her experience in family law to prove your abilities and importance to your child as a custodial parent, and get the time sharing plan that best suits your life and benefits your child.
Changing a Custody Order
After a judge makes a custody and visitation order, 1 or both parents may want to change the order.
There are many good reasons why a parenting plan may need to be changed. As the children get older, for example, their needs, interests, and activities change. And as each of the parents moves on with his or her separate life, new partners, new jobs, or new homes can all mean that the parenting plan needs to be changed.
Parents may need to renegotiate portions of their parenting agreement every 2 ½ to 3 years. If the parents agree on the changes, they can change their court order by using an agreement. But if the parents cannot agree on the changes, 1 of the parents must file papers with the court asking for a change (a “modification”) of your current child custody and visitation order. If you want to change your order, you and the other parent will probably have to meet with a mediator to talk about why you want the order to change before you go to the court hearing.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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