Modifying Custody

Introduction

This page includes information and forms for modifying the child custody provisions in an existing divorce, custody or parentage order. Modifying child custody means also modifying child support and parent-time. If your order is from another state or the child or parents live outside of Utah, see the Out of State Issues section.

You might only need to modify one aspect of your existing order. If you want to modify only:

• child support, see the modifying child support web page
• parent-time, see the modifying parent-time web page

If you need to modify your divorce decree for something not related to children, see our page on Modification of a Divorce Decree.

 

Jurisdiction

The Utah court must have "jurisdiction" to modify custody. Jurisdiction can be very complex, especially if the controlling order was entered in a state other than Utah or the child or the parents reside in a state other than Utah. Before spending the time and money to modify child custody in a Utah court, make sure that the Utah court, rather than the court of another state, has jurisdiction. For more information, see our chart outlining Jurisdiction to Modify a Custody or Parent-time Order.

 

Custody Orders From Different Courts and in Different Cases

Custody orders may be issued by the district court or juvenile court. Modification petitions must be filed in the same court that issued the controlling order.

Custody may be established by the court as a separate action or as part of a number of different types of cases, including divorce, annulment, separate maintenance, paternity, protective orders, adoption, neglect and dependency, and termination of parental rights. Many of the laws governing custody are in Utah's divorce statutes even though the parents may never have been married.

 

The modification process

 

Complete the documents

Either party can request a modification. The party asking for the modification files the forms in the Forms section below.

No matter who is asking for the modification, whoever was the petitioner in the original case is still the petitioner, and whoever was the respondent in the original case is still the respondent.

Domestic Relations Injunction

When a petition to modify is filed, the court will automatically issue an order called a Domestic Relations Injunction. The injunction is a court order requiring parties not to harass one another, change insurance or beneficiary coverage, transfer property or make non-routine travel with the parties' minor children while the case is pending. There are additional prohibitions in the injunction. Be sure to read it carefully.

The injunction is effective for the petitioner when the case is filed. The injunction is effective for the respondent when the petitioner gets a copy to them. See the Domestic Relations Injunction web page for more information.

File the documents

The party asking for the modification must file the documents in the same court that issued the decree. The documents will use the same case number as the decree. For information about how to file documents, see the Filing Procedures web page.

The party asking for the modification must pay a filing fee when they file the papers with the court. If they cannot afford the fees they can ask the judge to waive them. For more information, see the Fees and Fee Waiver web page.

Have the documents served

The party asking for the modification must have the other party served with the petition to modify, summons, and other documents no later than 120 days after the petition is filed. The documents must be served by one of the methods described in Utah Rule of Civil Procedure 4(d). The party asking for the modification must provide proof of service once service has been completed. For more information about service, see the Serving Papers web page.

The other party has 21 days (if they were served in Utah) or 30 days (if they were served outside of Utah) to respond to ("answer") the petition to modify if they disagree with anything stated in the petition. For more information, see the Answering a Complaint or Petition web page.

The other party's options

Stipulation

A "stipulation" is a written agreement that shows the parties agree about everything requested in the Petition to Modify.

The parties can agree on everything in the Petition to Modify before it is filed. In that case, they can file a stipulated petition.

If you are using the forms provided on this web page:

• Check the "and Stipulation" box on the first page of the Petition.
• Both parties must sign the Petition.
  • The party asking for the modification signs on the second-to-last page, and
  • the other party signs the last page, in the "Stipulation" section.

The parties might come to an agreement after the Petition is filed because the parties mediated or had some other negotiation.

If you are using the forms provided on this web page:

• Fill out a new Petition to Modify. Write "Amended" above "Petition to Modify" on the first page and check the "and Stipulation" box.
• Both parties must sign the Petition.
  • The party asking for the modification signs on the second-to-last page, and
  • the other party signs the last page, in the "Stipulation" section.

 

Issues when modifying custody

A modification case can address issues of paternity, child custody, child support and parent-time. For more information, see these web pages:

• Child Custody and Parent-time - information about the types of custody, parenting plans and parent relocation.
• Child Support - information about calculating child support, medical expenses, tax exemptions and collecting support. OCAP will calculate child support based on the child custody arrangement and the income of each parent.
• Parenting Plans - information about plans for parents to work together to raise their children.
• Paternity- information about who is the father of the child

 

Temporary order

Either party can ask for a temporary order if needed during the modification case if the requirements in Utah Rule of Civil Procedure 106 are met. If the party filing a motion for a temporary order asks for a change in custody or parent-time they must show that the motion seeks to prevent an immediate and irreparable harm or seeks to confirm changes already made by the parties.

They must also show that the temporary order will serve the best interests of the children. For more information and forms, see the How to get a Temporary Order web page.

 

Alternative Dispute Resolution (ADR) Before Petitioning to Modify

If you have an order of joint legal custody or joint physical custody then most likely your order contains provisions that tell you what type of dispute resolution you and the other parent must try to use before you can petition the court to modify your custody order. For example, your order or your parenting plan may state that the parents must use a professional mediator to try to resolve a parenting or custody dispute before going to court. Use the dispute resolution process described in your order.

You may also want to try to resolve any disputes on your own. For more information, see our webpage on Alternative Dispute Resolution. If you are able to resolve your disputes, then you can change your existing order by filing a petition to modify and the other required forms and a stipulation to enter judgment. The forms are in the section on Forms.

 

Material and Substantial Changes

If you and the other parent do not stipulate to the modification, the court must do two things: First, it must determine whether there has been a material and substantial change in circumstances since the controlling order was entered. Second, the court must determine whether modifying custody would be an improvement for and in the best interests of the child. If the case is contested, the parties will have to present evidence of both.

Examples of material and substantial changes after the controlling custody order may include that the parents have remarried, the parents have moved to new communities, or that the child needs to change schools.

A material and substantial change can include a parent living with a person or giving a person access to the child, when the parent knows that person has been convicted of certain serious crimes (like child abuse or sexual offenses against a child).
Utah Code 81-9-208

 

Servicemembers and deployment

Where one or both parents is a uniformed service member either parent can ask for temporary orders due to deployment. See the Motion for Temporary Order Due to Deployment web page for more information.

 

Out of State Issues

Jurisdiction

A Utah court must have jurisdiction (power) to modify custody. Utah might not have jurisdiction if:

• the child or the parents reside in a state other than Utah, or
• the controlling child custody order was entered in a state other than Utah.

Before spending the time and money to modify custody in a Utah court, make sure that Utah has jurisdiction. See the Jurisdiction to Modify a Custody or Parent-Time Order guide for more information.

Foreign Order

An order from another country or another state is called a "foreign order." A Utah court can modify a custody order from another state if it has jurisdiction. First, the foreign order must be registered and confirmed as a judgment of Utah. See the Registering a Foreign Child Custody or Child Support Order web page for more information and forms.

After a Utah court modifies a foreign order, the party filing the Petition or Motion to Modify must notify the court of the state that entered the order and every court in which the order has been registered.

 

Modifying a Child Custody Order From Another State

An order from another state is called a foreign order. The first of several conditions that must be met for a Utah court to modify a foreign order is that the foreign order must be registered and confirmed as a judgment of Utah. For more information, see our webpage on Registering a Foreign Order.

 

Forms

Forms to ask that child custody be modified

Required forms

• 1158.5XX
  
• Petition to Modify Child Custody, Parent-time and Child Support - PDF | Word
• Summons
  • 1015FA
  • 1016FA
• Proof of Service
• Non-public Information
  • 1051GE
  • 1052GE
  
  (See the Non-public Information web page for more information)
• 1905FA
  (See our Initial Disclosures page for more information)
• Child support worksheet
• Proof of income
  (2 years of tax returns and most recent pay stub)
• Findings of Fact and Conclusions of Law on Petition - PDF | Word
• Order on Petition - PDF | Word
• 1354FA
• 1134FA

Optional forms

• 1053GE
  (If a person needs to protect their contact information from the other party)
• 1921FA
  (Required if ORS is providing services to either party)
• Parenting Plan
  (Required if shared custody is requested)

• Financial Declaration
  (If the other party filed an Answer)

• 1113GE
  (Used to object to the proposed order or Judgment)

Forms to Respond to a Petition to Modify Child Custody

 

Required forms

• 1008FA
• Financial Declaration
• Non-public Information (See Non-public Information web page for more information)
  • 1051GE
  • 1052GE
  
  (Required if other party has not provided the information)

Optional forms

• 1053GE
  (If a person needs to protect their contact information from the other party)

• Child Support Worksheet
  (If you disagree with the child support amount the other party requested)

• Parenting Plan
  (Required if shared custody is requested)

• 1113FA
  (Used to object to the proposed order or Judgment)

Asking for Default Judgment

See the Default Judgment web page for information and forms.

Going to Trial

See the Getting Ready for Trial web page for information and forms.