Utah Divorce Code 30-3-10.4

30-3-10.4 – Modification or termination of order.

• On the petition of one or both of the parents, or the joint legal or physical custodians if they are not the parents, the court may, after a hearing, modify or terminate an order that established joint legal or physical custody if:

o the verified petition or accompanying affidavit initially alleges that admissible evidence will show that the circumstances of the child or one or both parents or joint legal or physical custodians have materially and substantially changed since the entry of the order to be modified;
o a modification of the terms and conditions of the order would be an improvement for and in the best interest of the child; and
o both parents have complied in good faith with the dispute resolution procedure in accordance with Subsection 30-3-10.3(7); or
o if no dispute resolution procedure is contained in the order that established joint legal or physical custody, the court orders the parents to participate in a dispute resolution procedure in accordance with Subsection 30-3-10.2(5) unless the parents certify that, in good faith, they have utilized a dispute resolution procedure to resolve their dispute.
• In determining whether the best interest of a child will be served by either modifying or terminating the joint legal or physical custody order, 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).
• The court shall make specific written findings on each of the factors relied upon stating:
o a material and substantial change of circumstance has occurred; and
o a modification of the terms and conditions of the order would be an improvement for and in the best interest of the child.
• The court shall give substantial weight to the existing joint legal or physical custody order when the child is thriving, happy, and well-adjusted.

• The court shall, in every case regarding a petition for termination of a joint legal or physical custody order, consider reasonable alternatives to preserve the existing order in accordance with Subsection 30-3-10(1)(b). The court may modify the terms and conditions of the existing order in accordance with Subsection 30-3-10(5) and may order the parents to file a parenting plan in accordance with this chapter.
• A parent requesting a modification from sole custody to joint legal custody or joint physical custody or both, or any other type of shared parenting arrangement, shall file and serve a proposed parenting plan with the petition to modify in accordance with Section 30-3-10.8.
• If the court finds that an action under this section is filed or answered frivolously and in a manner designed to harass the other party, the court shall assess attorney fees as costs against the offending party.

Modifying Child Custody or Support

In most cases where the parents of a child are not in a relationship and do not live together, whether due to divorce or other circumstances, one or both parents will seek to define the support and custody arrangement for the child. In some cases the parents have an amicable relationship and can come to an agreement regarding child custody and support without court intervention. Regardless of the cordiality of the co-parent relationship, however, it is prudent for the parents to reduce the agreement to writing and file it with a court that has jurisdiction over the matter. This ensures that the terms are clearly defined and allows for the enforcement of the agreement should the relationship sour. In cases where the parents are unable to come to an agreement regarding their parental rights and obligations, either parent may file a lawsuit seeking custody or support of a child, and the court will ultimately issue an order determining custody and support. In either circumstance, it is important to include a provision that will allow for a modification of both the custody and support of the child.

Modifying Child Custody

As a child grows older circumstances change, and what may have worked best for a child or his or her parents when he or she was younger may no longer be practical or beneficial when the child is older. Situations that may necessitate a change to a child custody arrangement include a change in the school the child attends or an increase in a child’s needs due to situations such as illness or mental health or developmental issues. Additionally, if a parent is in violation of the current custody arrangement, it may be grounds for modification.

Often as a child matures he or she may want to spend more time with one parent, and may ask the parent to request a modification. In some cases, a parent may have a concern regarding his or her co-parent’s ability to properly care for the child, either due to illness, increased job requirements or travel commitments, or other circumstances, and may request a modification. If the parents are unable to come to an agreement regarding a modification to the custody arrangement, they can petition the court for a modification and the court will determine whether a modification is warranted. As with all issues involving a child, the court will assess whether the modification is in the best interest of the child before deciding to grant it.

What is a Motion to Modify?

A request to the court to change an existing court order because of a change in circumstances. There is a $110 filing fee for Motions to Modify.

How much does it cost to file a Motion to Modify?

It usually costs thousands to file a Motion to Modify Child Custody, Visitation or Support or Spousal Maintenance or Property Division. The motion to modify paperwork will not go to the judge until you have either paid the filing fee or been granted a fee waiver if you are low income. If you are modifying a registered out-of-state order within 30 days of the registration confirmation date, there is no filing fee. After 30 days, you need to pay the $75 fee. It is FREE to file an uncontested motion to modify when the parents agree on the change.

What can I modify?

• Property and debt division from a divorce or dissolution: very rarely
• Spousal support: possibly
• Child custody and support: if there is a change in circumstances
What changes in circumstances are needed to modify custody and support?
For custody, a change in circumstances means something has happened so that the old parenting plan is no longer in the children’s best interests. Examples include:
• the original plan was for an infant and now the child is 5 years old and will start kindergarten so the old schedule of 10 am exchanges does not work
• one parent is moving out of state so the existing schedule of week on / week off is impossible
• the parent whom the children were living with four days a week went to jail so the existing schedule is impossible
• an act of domestic violence between the parents when returning the children.
For child support, there needs to be:
• a 15% change in the amount of child support ordered (this means that when you calculate support based on the parents’ current income now, it is 15% more or less than the current support order), or
• a change in the parenting plan from primary custody to shared custody or vice versa that affects the child support formula. You may find the FAQs on Child Support helpful to decide whether to file a motion to modify child support.

How do I find out if the other parent’s income has changed?

• Once a year you can ask the other parent in writing to provide documents such as tax returns and pay stubs showing their income for the prior calendar year. Attach documentation of your annual income for the same period that you are asking for their income information.
• Do NOT file the written request in court. It is just between the parties.
• Within 30 days of the written request, the other parent must provide the documents to you.
• You can only request the other parent’s income information once a year. However, within a court case you can request this information through the discovery process.
Can child support be retroactively modified?
No. Generally, you will always owe child support according to the most recent court order, or administrative order if you do not have any court orders. Therefore, if there has been a 15% change in your income or the parenting plan has changed in a way that affects the child support, you must file a motion to change the child support. Otherwise, you’ll just keep owing under the existing order. However, this is a dynamic area of law and you should consult with an attorney to find out whether there are any legal strategies that might be helpful to you.
Can you get support for an 18 year-old-child still at home and in high school?
Yes, as long as all of the conditions are met. Please read the Instructions, for more information about the conditions and forms.
What is the difference between a Motion to Modify and an appeal?
A Motion to Modify is a request to the trial court or administrative agency to change an existing order because of a change in circumstances. The trial court or agency will consider new evidence as it relates to the change of circumstances. In the family law context, Motions to Modify Custody or Support can be filed anytime before the children turn eighteen.
What forms can I use to file a Motion to Modify?
There are 2 options for paperwork that you can file. They both work, but the first gives you the opportunity to provide more specific information about the reason to modify:

• Motion to Modify Custody, Visitation & Support Packet
OR
• Motion to Modify Packet,
• Order Modifying Child Support, (if you are asking to modify child support fill out as if the judge is granting what you asked for in the motion, but DO NOT SIGN)
• pick one of the following if you are asking to modify custody and visitation and fill out as if the judge is granting what you asked for in the motion, but DO NOT SIGN:
o Custody Order
o Post-Judgment Order for Modification of Custody and Visitation (4 pages),
What forms can I use to respond to a Motion to Modify?
If you have been served with a Motion to Modify, you may use the following packet to respond:
• Response to Motion to Modify Packet
What if we agree on the modification?
Even if both parents agree on the change, you still need to file something in court. Both parents can file together:
• Uncontested Motion to Modify Custody, Visitation and Child Support Packet,
It is FREE to file an uncontested motion to modify when the parents agree on the change. When the parents do not agree, it costs $110 to file a request to modify.

What forms are always required with a post-judgment motion?

With any motion filed after you have received a final judgment in a divorce or custody case, include:
• a Notice of Motion, S
Note: the Motion to Modify packet,includes a form Notice of Motion to Change Custody, Support or Visitation, which serves the same purpose. If both parents are filing together an Uncontested Motion to Modify, you do not need to file a Notice of Motion.

Are there any special service requirements?

The method you use to serve depends on what court order you want to modify.

Motion to Modify from Utah Court Orders

If you are filing a motion to modify custody or support from an order issued by an Alaska court, you serve the opposing party by first class US mail or hand delivery. Please read the information about serving the opposing party.

Motion to Modify from Registered Foreign Orders

If you are filing a motion to modify custody or support from an order that has been registered in the Alaska court because the original decision was issued by a court outside Utah, there are different requirements to serve motions to modify registered orders.
To modify a registered child support order, send a copy of the modification papers to the other party by regular first class mail.
To modify a registered child custody order, send a copy of the modification papers to the other party by:
• certified mail/restricted delivery/return receipt , or
• hiring a process server.
To modify both a registered child support order and a registered child custody order, send a copy of the modification papers to the other party by:
• certified mail/restricted delivery/return receipt , or
• hiring a process server.