It depends on how you reached this point, and how much time, if any, you have to fix it.
- If circumstances relevant to the child custody award have materially and substantially changed since the award was made or last modified, you can petition to modify the child custody award by proving (if you can) that circumstances relevant to the child custody award have materially and substantially changed such that the best interest of the child necessitates or warrants modifying the child custody and/or parent-time awards.
- How do you prove that circumstances have materially and substantially changed?
- First, you have to state claims that, if they can be proven, would constitute a compelling reason to modify the child custody and/or parent-time award(s).
- Next, you have to meet the standard of proof, i.e., by a preponderance of the evidence (meaning that a party must show that their claim is more likely true than not, meaning that there is greater than a 50% chance that the claim is correct based on the evidence presented. This is a lower standard than “beyond a reasonable doubt,” which is used in criminal cases).
- How do you prove that circumstances have materially and substantially changed?
- If your judge committed reversible error in making the child custody and/or parent-time award(s), you can file an appeal of that decision, but there is a limited amount of time each jurisdiction provides for filing an appeal.
How do you prove that the judge committed reversible error? By ensuring you have all of the following (thanks to the Utah Bar Journal, July/August, 2010 article by Norman H. Jackson and Lisa Broderick Thornton, which I quote and paraphrase below):
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- Reversible error. Has the trial court committed reversible error? “Error” that does not affect substantial rights of the parties is not reversible error, but harmless error. This rule requires the appellant to show not only that an error occurred, but that it was “substantial and prejudicial.” To demonstrate prejudice, appellants must show reasonable likelihood that without the error, there would have been a different result, a substantially unjust one. No one is entitled to a trial or hearing free of all error. Thus, unless the lower tribunal has committed reversible error, one should not pursue an appeal.
- Preservation. “Preserving an issue for appeal” means that a party must raise a legal objection or argument during the trial or earlier stages of litigation in order to have that issue reviewed by an appellate court later. If an issue is not properly raised or objected to at the trial level, it is often considered waived or forfeited, and the appellate court will generally refuse to review it. This practice is based on the principle that appellate courts are there to review the record of the trial court proceedings rather than consider new arguments or issues that were not presented before the trial court. The rationale for “preservation” is that the trial court, in fairness, ought to have the chance to correct its own errors.
- Standard of Review. Will this challenge of the trial court’s action satisfy the burden imposed by appellate standards of review? The appellate process consists of just three types of review. An attorney should forego filing an appeal unless he or she can objectively pursue one or more of the following three challenges:
- (1) Challenge of Factual Findings: The appellant must show material findings are clearly erroneous by marshaling all evidence supporting the findings, then showing this evidence is legally insufficient to support the findings when viewed in a light most favorable to the trial court’s findings.
- (2) Challenge of Discretionary Rulings: The appellant must show the trial court exceeded the measure of discretion allotted or exceeded the boundaries set by principles or rules of law by showing the decision exceeds the limits of reasonability or by showing it is a “capricious and arbitrary action.”
- (3) Challenge of Conclusions of Law: The appellant must show legal error by the trial court in its use of fixed principles and rules of law, demonstrating the trial court incorrectly selected, interpreted, or applied the law.
Utah Family Law, LC | divorceutah.com | 801-466-9277
