The Lawletter Vol 36 No 2, September 30, 2011
Sandra Thomas, Senior Attorney, National Legal Research Group
A recent decision of the Court of Appeals of Utah examines the tensions that exist between and among the various policies before the court in a parental relocation case. Taylor v. Elison, 2011 UT App 272, ___ P.3d ___ (not yet released for publication).
The parents in Taylor were divorced in 2005, when the children were approximately one and three years old. Under the divorce decree, the mother had primary physical custody of both children, and the parents shared legal custody. Although some portions of the decree were decided by the court, the custody arrangement and an unusual relocation provision were agreed upon by the parties and entered by stipulation. The relocation provision stated that "'if [Mother] moves from the state of Utah, other than [to] the Las Vegas area, the children shall remain in Utah with [Father] who will then be designated as the primary physical custodian.'" Id. at ¶ 2.
In February 2009, the mother planned to move to Arizona with the children, who were then five and seven. The mother had been the children's primary caregiver at all times following the separation of the parties, more than four years earlier. Because the move would trigger the quoted provision, the mother petitioned to modify the decree so that she could retain custody. In May 2009, the mother moved to Arizona with the children.
Each party requested temporary custody of the children, pending resolution of the mother's modification motion. In July 2009, the court denied the mother's request for temporary custody and transferred custody of the children from the mother to the father. The district court reasoned that "'[t]he change of custody from [Mother] to [Father] is not a modification of the [d]ecree'" but was instead "'enforcement of the decree.'" Id. at ¶ 5.
In reaching its decision, the court reasoned that no change in circumstances had occurred, because "'th[e] move was contemplated at the time of the [divorce] decree'" and "'the decree specifically provided that a change in custody would occur if . . . [Mother] move[d] from . . . Utah'"; the reasons for the move were therefore "'irrelevant.'" Id. at ¶ 6. Since the parties had stipulated to the condition ordered by the court and there had been no change of circumstances not anticipated in the decree, the court determined that it was not required to make a full inquiry into the children's best interests and concluded that transferring custody would be in the best interests of the children primarily because the parties had stipulated to it. Id. at ¶ 15.
The mother appealed, arguing that it was error to enforce the relocation provision in the divorce decree without first considering whether a change in custody would be in the children's best interests. The appellate court criticized the emphasis placed by the trial court on the change of circumstances required to initiate a modification at the expense of "the inquiry central to both the permanent and temporary petitions for modification, i.e., whether an immediate change in the children's longstanding primary caregiver would be in their best interest." Id. at ¶ 10. The court noted that the res judicata justification for requiring a change of circumstances before a court can assess the merits of a proposed modification is "at a particularly low ebb" where the existing custody arrangement was reached by agreement and was not adjudicated. Id. at ¶ 14.
The appellate court then went on to criticize the trial court for treating the temporary modification motion as an enforcement proceeding on the theory that the court was doing no more than maintaining the existing order, notwithstanding the fact that the actual physical custody of the children was changed. "Here, the district court, in essence, approached the matter as if no change in custody resulted from its decision because, from the perspective of the divorce decree, the custody provisions had not been modified but had been enforced." Id. at ¶ 23. The court held that regardless of whether the divorce decree itself was modified by the district court's decision, "an actual change in custody resulted when the court temporarily transferred custody of the children from Mother to Father." Id. at ¶ 24. The appellate court concluded that "in enforcing the divorce decree, the district court erred by failing to consider whether transferring physical custody from Mother to Father would be in the best interests of the children," and it reversed the case, sending it back to the trial court for further proceedings. Id. at ¶ 25.
