Divorce proceedings can be contentious and emotional. This is especially true in cases where the divorcing spouses have minor children. While couples divorcing in Utah generally have the option to devise their own custody arrangements, the court will intervene with its own decision if the parties cannot agree about how custody should be handled. If the court issues an unfavorable decision, is there anything you can do as a parent? Is it possible to appeal, or to modify existing custody orders? Divorce attorney Darwin Overson explains some of Utah parents’ legal options in this scenario.
Do Utah’s Appellate Courts Hear Custody Matters?
It may be possible to appeal an unfavorable child custody ruling provided the appellant, i.e. the person seeking a new ruling, abides by the relevant statute of limitations and meets all filing deadlines. The critical importance of following legal deadlines was notably exemplified by the 2014 Utah Supreme Court case of William Bolden, a biological father who lost paternity rights to adoptive parents due after failing to “fil[e] a paternity affidavit within the time prescribed.”
There are two appellate courts in the state of Utah:
- Utah Court of Appeals
Appellate Clerks’ Office
450 S. State, Fifth Floor
P.O. Box 140230
Salt Lake City, UT 84114
- Utah Supreme Court
Appellate Clerks’ Office
450 S. State, Fifth Floor
P.O. Box 140210
Salt Lake City, UT
The Utah Court of Appeals hears a wide variety of appeals in addition to child custody appeals, including but not limited to divorce appeals, property division appeals, and adoption appeals. By comparison, the Utah Supreme Court only hears extremely serious matters involving “extraordinary writs” (which grant authority normally outside the scope of a lower court) and “questions of state law certified from federal courts” (which refers to court-to-court requests for legal opinions). The Utah Supreme Court also has the power to send cases to the Utah Court of Appeals.
Parents are advised against self or pro se representation due to the length and complexity of the appeals process, which involves filing a Notice of Appeal, a docketing statement, and various briefs and petitions. In light of these potential pitfalls, the state judiciary explicitly cautions against pro se representation, stating the following in its Pro Se Guide to Appeals Procedures:
Pro Se litigants are responsible for learning about and following the procedures that govern the court process. Think carefully before deciding to represent yourself because the process is very detailed and can be confusing. The appellate courts highly recommend that you obtain the assistance of an attorney.
How Divorced Spouses Can Modify an Existing Child Custody Plan
Custody orders may be issued by two types of courts:
- District courts, which handle a wide variety of criminal cases (such as murder or sex crimes) and civil cases arising from domestic and family matters (such as divorce and child support).
- Juvenile courts, which handle legal violations (such as underage drinking, shoplifting, or vandalism) and child welfare issues (such as child neglect and child abuse).
Regardless of whether the original custody order was issued by one of Utah’s juvenile courts or district courts, the petition to modify child custody must be filed with the same court that was responsible for the original custody determination. Both parties have the right to file a petition for modification: the petitioner may be either husband or wife.
The court’s ultimate objective is always the same, regardless of whether custody is being reexamined or addressed for the very first time: preserving the child’s best interests. The court does not particularly care what sort of arrangement you personally desire: the primary goal is making sure the custody arrangement will keep the child healthy, safe, and well cared-for.
Toward that end, the court considers the same types of factors when considering a re-determination, such as access to financial and educational resources, the distance between parental homes, and the child’s personal preference. Depending on the family’s circumstances, some additional factors may also need to be considered during modification proceedings, such as a move, remarriage, or dramatic change in either parent’s income, health, and ability to care for the child.
Like the appeals process, the process of modifying child custody is complex and subject to numerous filing requirements. To give just a few examples, petitioners must include a cover sheet, the petition itself, an appropriate summons (and proof of service of the summons), affidavits, Notice to the Child Support Division of the Attorney General’s Office, and other documentation, all of which is subject to strict deadlines.
On a final note, it’s important to emphasize that you may or may not be subject to a special ADR requirement before you will be allowed to file a petition for modification of a court order. ADR stands for “Alternative Dispute Resolution,” where mediation provides an “alternative” to going through potentially contentious, protracted, and costly court hearings. Your original custody order will tell you whether or not you need to go through ADR before you can petition the court.
If you’re going through a child custody dispute in Utah, or need a divorce lawyer because you have been served with papers or want to file for divorce, family law attorney Darwin Overson may be able to help. To set up a free and completely confidential legal consultation, call our attorneys today at (801) 758-2287.