How to Defend Yourself against a Petition to Modify Custody

A custody order in a divorce or paternity case is not permanent. Until the children reach age eighteen, either parent can petition the court to modify the prior custody award. This is true even if the current custody award was negotiated as part of a settlement or stipulation. The courts understand that circumstances can change and that the children need a change. If the custody award favors you, you might be defending against a petition to modify custody sometime in the future.

We are Utah custody lawyers practicing family law in the Salt Lake City area and along the Wasatch front. Below, we provide some tips for how to defend against a petition to modify custody. Please keep in mind that every case is different and the tips are generalities. If you have questions about your specific case, feel free to reach out for a free consultation.

Ensure That Your Children Are Thriving and Document It

If the children are thriving, it will be difficult for the other parent to persuade the court to change custody. Keep track of your children’s progress at school and in other things. Do not neglect or abuse the children or do anything about which the other parent could legitimately complain. Keep documentation of the good things so that you can prove it in court.

Do Not Attempt to Unnecessarily Cut Off the Children from the Other Parent

The conventional wisdom to which the courts adhere is that parents need both parents. If the other parent is entitled to parent time, see to it that he or she gets it. The exception is where the other parent might harm the children. Contact with the other parent is for the benefit of the children. Inappropriately cutting off the other parent will put you in a bad light.

Begin Defending Against a Petition to Modify Custody as Soon as Possible

Do not wait for a petition to modify custody to start acting like the good parent. Start now. Keep records. You do not want the court to determine you are a good parent only while a case is pending. Your children will benefit, and the other parent may not feel a need to fight for custody.

Peter ChristensenHow to Defend Yourself against a Petition to Modify Custody
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How to Modify a Child Custody Order

Changing circumstances may lead parents to decide to modify their child custody order. This post explores how to change a child custody order. This post only covers basic, general information regarding this topic.  For specific advice tailored to your circumstances, you should consult a Utah custody attorney.

Change of Custody by Stipulation

Sometimes, parents find themselves in a custody routine that differs from the custody order. It is usually a good idea for the parents to get that new routine included in the court order. Other times, the parents find themselves in a situation where they both agree that custody must change. If both parents agree or stipulate, the court will typically allow the parents to update the order. This update will also typically lead to an update on the child support order.

Change of Custody by Litigation

Many parents are unwilling to agree to have less custody. This can be true even if they do not regularly exercise all their custody rights. In such cases, the parent wishing to modify custody must convince a judge to change custody.

To convince a judge to change custody, the judge must believe two things:

First, the judge must believe that circumstances have changed since the previous custody order. Changes of circumstance must be significant and must be relevant to custody. (Though, if the previous custody order was based on a settlement, there is more leeway.) Additionally, changes must typically involve the parent who is to have less custody. For example, you might argue that a parent can no longer take care of the child. Or, that the parent no longer does care for the child or exercise custody. You will need to back these arguments with strong evidence.

Second, the judge must be convinced that the proposed change is in the child’s best interests. There are a number of factors judges consider. However, the focus will often be on the reason the parent wants to change custody.

Obtaining Advice Specific to Your Case

At Christensen Law, the attorneys are Utah custody lawyers in Salt Lake City, serving the Wasatch front and beyond. We can give you advice about your circumstances and help with your case.

Peter ChristensenHow to Modify a Child Custody Order
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WHAT IS A CUSTODY EVALUATION AND WHAT HAPPENS AFTER A CUSTODY EVALUATION?

What is a custody evaluation?

In Utah, the courts sometimes order custody evaluations. This can happen in divorce, paternity, modification, or other custody cases. And then, the court with input from the parties appoints an evaluator. If available, the evaluator will inform the court. From there, the evaluator receives standard instructions, and the parties receive orders to cooperate with the custody evaluator. The parties will likely visit with the evaluator, undergo assessments, and have a chance to share concerns. Eventually, the evaluator informs the parties and court that the evaluation is done or soon will be done.

What happens after the custody evaluation?

After the evaluation, the attorneys, parents, and evaluator will have a meeting. At the meeting, the custody evaluator will verbally inform everybody present of his or her conclusions. Often, a mediator will be present and involved. Then, the parties will be able to take advantage of the ability to mediate in light of the evaluation results. The results of the evaluation can have a number of effects on the mediation. The evaluation might clarify what is important or not important. The evaluation might also serve as a reality check for one or both of the parents. If you do not reach a settlement agreement, the case will eventually go to trial. If requested, the custody evaluator will prepare a written report and will be available to testify at trial.

What happens if the custody evaluator strongly favors or disfavors a particular parent?

As noted above, the custody evaluation can serve as a reality check. The evaluation might discourage one parent from moving forward on the case. On the other hand, it might give the other false confidence. The custody evaluator is not the judge. Then, the recommendation will not necessarily become the order of the court. If there is a custody evaluation in your case, consider hiring an attorney for the meeting. Then, the attorney can advise you about the effect the evaluation has in your case. Lastly, if you feel inclined to settle based on the evaluation, the attorney can help craft an agreement with which you and the children can live.

Peter ChristensenWHAT IS A CUSTODY EVALUATION AND WHAT HAPPENS AFTER A CUSTODY EVALUATION?
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3 TIPS FOR GETTING THROUGH THE DIVORCE PROCESS

Going through the divorce process can be stressful. There is often uncertainty, unfairness, and uncivility, among other challenges. These challenges can both make your life difficult and interfere with your case. It is worth finding ways to overcome the challenges, even mid-divorce.

The attorneys at Christensen Law are Utah divorce lawyers. They are accustomed to handling divorce, custody, and other family law matters for local and out-of-state clients. Below, Christensen Law provides some tips that may help you. However, keep in mind that all situations are different. For advice tailored to you, you should consult a Utah divorce attorney.

Tip #1: Stay Organized and Keep Up with Things

You need to know what to ask the court to rule on. And, you will need to gather the evidence or testimony to support your arguments. Even if represented by an attorney, you need to coordinate with him or her.  If you want the court to split bank accounts, you need to show account statements. If the other side is harassing you with texts, you need to show the texts. Perhaps you are disputing alimony, and if so you will need to track and document expenses.

Tip #2: Try to Stay Calm During Hearings and Mediation

Feeling strong emotions is to be expected. However, if you lose control at a key moment, there could be long-term consequences. At hearings or trial, your demeanor in the courtroom will have a direct effect on the outcome of the hearing. The judge will note your behavior. Even if he or she does not, negative behavior will distract your attorney. As for mediation, you often will be in an entirely separate room with only your attorney. But, if you are not calm, you may make poor decisions that will have long-term consequences.

Tip #3: Consider Therapy or Counseling

A divorce is a big change and typically comes with an assortment of emotional issues. It may be that therapy or counseling could prove useful. A therapist or counselor can help you overcome the
emotional injury associated with divorce. He or she could help you find constructive ways to address ongoing challenges. And, he or she can help you learn how to develop the skills to deal with an ex-spouse.

Peter Christensen3 TIPS FOR GETTING THROUGH THE DIVORCE PROCESS
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How to Have Your Voice Heard in Your Divorce or Custody Case

In Utah, it is common for those struggling with a divorce case to leave the courtroom feeling that their voice went unheard. Part of this stems from the use of the domestic commissioner system in Utah’s more populous counties. Many family law hearings in Utah occur in front of a domestic commissioner. The commissioner typically holds abbreviated hearings where family law attorneys summarize evidence.

The lawyers at Christensen Law are divorce attorneys in Utah. We assist clients with divorce, custody, and child support cases. Through our experience, we have found a number of ways to help
our client’s voices be heard. Below, we provide some key tips. However, each case has it’s own challenges. For advice specific to your case, feel free to contact us for a free consultation.

Work Closely with Your Attorney to Draft a Written Statement

Domestic commissioner and judges often review written statements submitted prior to the hearing. Sometimes, they are better at reading than listening. Working with your attorney to write out what you want the commissioner or judge to know can help your case. Your voice in the writing will be persuasive. An attorney can help ensure that what you tell the court is relevant and helpful.

Prepare for and Request an Evidentiary Hearing Before the Judge

Sometimes you will not be persuasive in writing. Or, perhaps the other side is able to overstate their case in their writing. If you are unhappy with the commissioner’s recommendation, you may request an evidentiary hearing before the judge. On custody issues and certain others, the judge is obligated to allow an evidentiary hearing. At the hearing, you will at least be able to cross-examine the other side about their statement.

Gather, Summarize, and Present Evidence

Complaining about never getting parent time or being child support goes only so far. If you want to drive the point home, gather evidence. If the evidence is voluminous, prepare a summary. Backing up your claims will help them carry more weight.

Peter ChristensenHow to Have Your Voice Heard in Your Divorce or Custody Case
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Supervised Visitation

The State of Utah recognizes a parent’s fundamental liberty interest in raising his or her children. They will ordinarily allow divorced or separated parents to have unrestricted and unsupervised access to their children. However, a court can order supervised visitation if they find the child subject to harm if left unsupervised with the parent.  They will also order supervised visitation if no less restrictive means are available to protect the child. Supervised parent-time is as it sounds. A parent may receive permission to have parent-time with the child. However, the parent cannot exercise that time alone with the child. They must have a supervisor present to oversee the parent-time.

How to Get Supervision for the Other Parent’s Visitation Time

The parent requesting supervised parent time has a great deal to do if they want the other parent’s time supervised.

First, they must prove the child could be harmed if the other parent’s time with the children was unsupervised.  Courts typically find such when the child has been subject to physical or sexual abuse. They also find this when the parent has drug addiction and has used in the presence of the children.  It can also happen if the parent has put the children in physical danger. Minor criminal charges, DUIs, disagreements between the parents are usually not enough to justify supervised parent-time. The moving party must also show that there are no less restrictive means available to protect the children. This means that the party must show the court that there is nothing else the court can do to protect the children except order the supervised parent-time.

Supervised parent-time is not something that a court typically orders absent extreme circumstances. The court sees supervised parent time as an extreme remedy and will only order it if no better option exists. If you are considering asking a court to order supervised parent-time for the other parent, please consult with the Utah custody lawyers at Christensen Law to make sure that your situation justifies such an extreme remedy.

What to Expect from the Court

If the court orders supervised parent-time, the court will give preference to a supervisor suggested and agreed to by the parties, including any relatives. Then, if the suggested person is willing to supervise, and the court finds them capable, they will authorize the person to supervise the parent-time. If the parties cannot authorize anyone, the court can require professional services to supervise the parent’s parent-time.

Every time the court orders supervised parent time, the court must provide specific goals and expectations for the parent to accomplish before unsupervised they get parent-time. The court will hold follow-up hearings to review the parent’s progress with the specific goals and expectations. The parent with supervised parent time may file a petition to modify the order at any time. They just need to show they’ve accomplished the goals and expectations set by the court. If you have supervised visitation with your children and want to get the supervision removed, please consult with the Utah custody lawyers at Christensen Law to see if you have a case to have the supervised visitation removed.

Peter ChristensenSupervised Visitation
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Initial Disclosures in Utah Divorce and Child Custody Cases

Utah courts require the parties in divorce and child custody cases to make initial disclosures to each other. The deadlines are automatically triggered when the respondent files his or her answer to the divorce or custody petition. Each party needs to meet the requirements to avoid flak from the other party and the court. But, doing initial disclosures right can also ensure that the case goes well. Good initial disclosures can make a positive difference at hearings, mediation, and trial.

As part of your divorce or custody case, Christensen Law’s attorneys assist with initial disclosures. Our assistance includes both preparing your disclosures and reviewing the other spouse or parent’s disclosures. Each case is unique, but below, we provide some generalities for reference purposes only.

What is involved with initial disclosures?

Typically, in family law cases, initial disclosures include financial declarations, witness names, and documents. In domestic cases, such as custody, divorce, parentage, annulment, etc., the parties must provide financial declarations. A financial declaration involves you sharing information about your income, assets, debts, and expenses. Both sides must provide a financial declaration and the documents to back it up. Such supporting documents include bank statements, tax returns, pay stubs, etc. Additionally, the parties should disclose any other documents or witnesses that they might use at

Additionally, the parties should disclose any other documents or witnesses that they might use at trial. The documents can relate to a number of things. When custody is at issue, you will want to gather documents showing your involvement in the lives of your children. For child support, you will want to gather documents showing that the other parent can make money. For debts and assets, you will want anything that supports your preference for how to divide everything. If any witnesses can back up the information, it helps to list them.

Why should you do a good job with initial disclosures?

There are a number of reasons why you should invest time into doing initial disclosures. We offer a number of reasons below:

  • It will help you organize and prepare your own case.
  • Obeying the rules requiring disclosure will keep you in the court’s good graces.
  • Having disclosures available will make it easier to mediate or prepare for mediation.
  • Your preparation and materials can be a reality check for an unreasonable opposing party.
Peter ChristensenInitial Disclosures in Utah Divorce and Child Custody Cases
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Alimony: Marital Standard of Living

The Utah courts define the standard of living as “a minimum of necessities, comforts, or luxuries held essential to maintaining a person or group in customary or proper status or circumstances.”

The Utah Supreme Court has held that “it is the purpose of alimony is to equalize the standard of living for both spouses, maintain them at their present standard of living as much as possible, and avoid the necessity of one spouse receiving public assistance.” See Mullins v. Mullins, 2016 UT App. 77, ¶ 10 (quoting Boyle v. Boyle, 735 P.2d 669, 671 (Utah Ct. App. 1987)). “Usually the needs of the spouses are assessed in light of the standard of living they had during the marriage.” Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991).

7 Factors the Court Uses to Determine Alimony

  1. the financial condition and needs of the recipient spouse;
  2. the recipient’s earning capacity or ability to produce income. This includes the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;
  3. the ability of the payor spouse to provide support;
  4. the length of the marriage;
  5. whether the recipient spouse has custody of minor children requiring support;
  6. whether the recipient spouse worked in a business owned or operated by the payer spouse; and
  7. whether the recipient spouse directly contributed to any increase, such as education, in the payer spouse’s skill during the marriage.

Thus, although the goal of alimony is to maintain the parties at their marital standard of living, it is ultimately a balancing act by the court. The courts use mainly the Financial Declaration to balance one party’s respective need for alimony against the other’s ability to pay. Each party must submit a Financial Declaration to the court or they become subject to a penalty of perjury. The Financial Declaration states the party’s assets, liabilities, monthly income, and monthly expenses.

Other Things to Consider

Importantly, the Court can allow reasonably anticipated expenses. According to State Law, the court must “avoid focusing on actual expenses alone when assessing need because the expense level during separation may be necessarily lower than needed to maintain an appropriate standard of living.” See Kidd v. Kidd, 2014 UT App. 26, ¶ 24. Through the reasonably anticipated expenses, the spouses can establish the marital standard of living.

However, credible evidence must support these expenses. It is critical to have spent time during the discovery period obtaining and disclosing all evidence that may be used at trial. The evidence that establishes the marital standard of living could include bank and other financial statements, receipts, bills, etc.

Therefore it is best, to begin with this end in mind. The parties should gather the evidence needed to prove the standard of living that they enjoyed during the marriage. Include in your Financial Declaration your anticipated expenses based on this standard of living which should include your “minimum necessities, comforts, or luxuries held essential to maintaining [you] in customary or proper status or circumstances” which you enjoyed during your marriage and be prepared to back it up with credible evidence at trial.

Peter ChristensenAlimony: Marital Standard of Living
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Work-Related Child Care Expenses

Utah law allows a Court to issues orders regarding the payment of expenses considered reasonable and necessary. Reasonable and necessary means work-related child care expense for the dependent children. The order for the payment of work-related child care expenses is in addition to the standard monthly child support. Depending on the child and situation, work-related child care expenses can become expensive for any parent to afford alone. Every divorced parent must follow the Court’s orders regarding work-related child care expenses. This is so that no party is solely responsible for those costs.

The Court will determine how to allocate the work-related child care expenses between the parties. The Court will typically order the parties to share those expenses equally. However, a Court may order the costs be split pro-rata according to the parties’ income. This happens if there is a substantial difference between their earning capabilities. The Court will also designate the party who shall initially pay the bill.

The other parent will then need to reimburse the paying parent for his or her share of the bill. Typically, the party who takes the party to the care provider is the party who initially pays the bill. However, the Court’s order will ultimately dictate who is responsible for the initial amount. It is the paying parent’s responsibility to make sure they give a copy of the bill to the other parent.  Then they must request reimbursement for his or her share.

5 Important Tips to Follow When Dealing with Work-Related Child Care Expenses in a Post-Divorce Context

  • The court requires both parties to share child care expenses considered reasonable and work-related. The child care must be necessary for the parent to go to work. The court does not require the other parent to pay for half of the child care expenses for non-work related reasons (such as a babysitter so the other parent can go on a date or church activity) unless the other parent agrees otherwise.
  • Consult with the other parent regarding the care, the cost, payment options, and any reasonable alternatives when determining a child care provider. A parent who unreasonably incurs expenses without consulting the other parent may find themselves solely responsible for the expense.
  • When you receive the bill for the child care expense, immediately send a copy of the bill to the other parent. Do not allow them to accumulate. The Court will generally state that requests for reimbursements must be made within a certain amount of time. A parent who fails to request reimbursement in time may find out that they waived the right to reimbursement by failing to notify the other parent of the expense.
  • Send the request for reimbursement with a copy of the bill or invoice to the other parent via e- mail that way you have a copy of what was sent and when it was sent. You will have proof that you made the request if there is ever a dispute about whether or not you ever requested to be reimbursed.
  • Certain work-related child care expenses can give a parent a refundable tax credit. However, a parent can usually only claim the credit if he or she is claiming the qualifying dependent. Make sure that you work with your attorney and accountant to make sure that you will qualify for the tax credit.
Peter ChristensenWork-Related Child Care Expenses
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Dealing with an Adverse Custody or Financial Decision

In a Utah divorce or custody case, you may find yourself up against an adverse custody or financial decision. If you have any desire to challenge the decision, you must act fast. There are almost always deadlines to challenge a court’s decision. Those types of deadlines are not forgiving and can prevent you from obtaining relief you might deserve. Your options for challenging the decision depend on what kind of decision it was.

The attorneys at Christensen Law can help evaluate your situation and make specific recommendations. They can also help you carry out the recommendations and provide advice tailored to you. For informational purposes, we provide some generic observations below.

Commissioner Decisions

In Utah, a lot of family law court hearings are conducted before commissioners. Commissioners are like judges, but instead of making orders, they recommend orders. Their recommendations are court orders unless changed. If you disagree with a recommendation, you may object to it within fourteen days. The fourteen days begins when the commissioner makes the recommendation in court or when the commissioner issues a written recommendation. A judge will take your objection into consideration.

Judge Decisions

There are a variety of avenues available for challenging a judge’s decision. The availability of these avenues depends on the status of your case. If the judge’s decision is not a final judgment, the judge can reconsider his or her decision. If there is a final judgment, it may be possible to file a motion for additional findings or new trial. Such motions can lead to altered decisions. If you have exhausted options that will result in the judge changing the decision, you can appeal. An appeal involves asking a higher court to review the decision for error. An appeal can be complicated and expensive, so it is worth trying the other options first. Pursuing those options can also help improve your chances on appeal.

Peter ChristensenDealing with an Adverse Custody or Financial Decision
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