When Should I File a Petition to Modify?

Parents often ask a Salt Lake City family lawyer what needs to happen in order to modify their existing custody arrangement. Unfortunately, the answer is always “It depends.”

Utah law allows one or both parents of a child to petition a court to modify. They can modify an order that establishes joint legal or physical custody. A parent would have to show enough evidence that shows the circumstances of the child or parents have changed significantly. This is relevant if the changes have been made since the entry of the order that is being modified. They also have to show that the change of the previous order would be in the best interest of the child. A court will almost always require the disputing parents to mediate the dispute before the court decides the matter.

There Needs to be Substantial Change

In order to modify the existing custody arrangement, the moving party must demonstrate a material and substantial change since the entry of the previous order. Even if the proposed new arrangement would be more beneficial to the child, a court cannot consider the new arrangement without first finding a substantial and material change has occurred. In determining a possible modification, the court will consider a variety of factors.

These include (but are not limited to):

  • the past conduct and moral standards of each of the parties
  • the desires of the parties
  • the ability of a parent to have frequent and continuing contact with the other parent
  • the proximity of the homes of the parents
  • the ability of the parents to cooperate
  • any other factors the court finds relevant.

The court will give substantial weight to the existing order if the child is thriving, happy, and well-adjusted.

 

Whether or not a material and substantial changes have occurred is a factual determination. This varies from situation to situation and court to court. Courts have found that a parent’s relocation, a child starting school, and one parent continually preventing the other parent from exercising his or her parenting time is enough to justify a modification. However, a court will not automatically find those specific situations enough to justify a modification. It is important to consult with a Salt Lake City family law attorney before a parent files a petition to modify. This ensures the parent has a valid basis to modify. It is important to not file a petition to modify or answer frivolously. The court has the ability to assess the other parent’s attorney fees as a cost toward the offending parent.

Heidi RogersWhen Should I File a Petition to Modify?