Child custody orders are not etched in stone, but neither are they revolving doors. Utah law makes that clear. Parents often assume that if circumstances “change” at all (no matter how little), or if the other parent becomes irritating enough, the court will adjust custody accordingly. That’s not how it works. Custody modification has a very high legal threshold—by design (Hogge v. Hogge, 649 P.2d 51, 53–54 (Utah 1982)).[1]
This post explains when it is appropriate to modify a custody order in Utah, what the statute actually says, how courts apply it, and why a parent’s subjective views usually carry far less weight than they think.
To modify custody in Utah, you must prove (1) a substantial and material change in circumstances under Utah Code § 81-9-208, and (2) that the proposed modification is in the child’s best interest under § 81-9-204. Minor life changes, personal disagreements, or your views about how parenting “should” work won’t move the needle. You need evidence of a meaningful change that affects the child’s welfare or stability.
The Legal Foundation: Utah Code § 81-9-208
Utah Code § 81-9-208 gives courts the authority to modify custody orders, but only when the petitioning parent first proves a substantial and material change in circumstances. The Utah Supreme Court established this two-step test more than forty years ago, and it remains the governing standard today (Hogge, 649 P.2d at 53–54).
Utah appellate courts treat this requirement as a strict gatekeeper. Utah courts will generally not revisit custody unless the petitioner clears Step 1 (Taylor v. Elison, 2011 UT App 272, ¶ 12[2]). Even overwhelming evidence that a different custody arrangement would be “better” cannot substitute for the threshold showing (Peeples v. Peeples, 2019 UT App 207, ¶ 13[3].)
For modifications of joint custody, the statute also requires a verified petition, evidence supporting the alleged changes, and compliance with any decree-mandated dispute-resolution procedures.
The Two-Step Test Utah Courts Apply
Step 1: Substantial and Material Change
This requirement prevents parents from repeatedly litigating custody for ordinary life events or personal dissatisfaction.
Step 2: Best Interest of the Child
Only after Step 1 is satisfied may the court evaluate best interest using Utah Code § 81-9-204’s factors (Hogge, 649 P.2d 51, 53 (Utah 1982) (establishing two-prong analytical framework for custody modification); see also Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) ).
This sequencing is mandatory. Courts cannot skip Step 1.[4]
What Qualifies as a “Substantial and Material” Change?
Utah appellate decisions show that the change must be meaningful, lasting, and tied to the child’s welfare, not merely to a parent’s inconvenience (Miller v. Miller, 2020 UT App 171, ¶¶ 15–18).
Common examples that do meet the standard:
Significant Relocation
A move that materially disrupts transportation, schooling, or continuity. Routine or short distance moves usually don’t qualify (Zavala, 2016 UT App 6, ¶ 23).
Major Shifts in a Parent’s Stability
Substance abuse relapse or recovery, serious mental-health changes, chronic instability, or major employment shifts.
Material Changes in the Child’s Needs
New diagnoses, disability-related needs, or developmental changes requiring a different caregiving structure.
Household Composition Changes Affecting Safety or Stability
Unsafe individuals in the home, or major changes in caregiving arrangements.
Long-Term Departure from the Ordered Schedule
Extended, consistent deviation from the decree may justify modification.
Emergent Safety Concerns
Evidence of abuse or endangerment appearing post-order.
Changes That Do Not Qualify
Routine inconveniences, temporary disruptions, differing parenting philosophies, or emotional frustration with the other parent do not meet the statutory threshold.
When Courts Reach the Best-Interest Analysis
If—and only if (at least for now)—the court finds a substantial change, it then analyzes the child’s best interest under § 81-9-204: safety, developmental needs, parent-child bonds, co-parenting ability, stability, schooling, and (when appropriate) the child’s preference. Courts weigh these factors based on current circumstances, not parental desires.
Your Subjective Views Rarely Move the Needle
Many parents believe custody should change because:
- They make “better” parenting decisions.
- The other parent’s choices seem inferior or irritating.
- The original decree feels unfair or outdated.
But your views about nutrition, screen time, chores, bedtimes, friends, dating, religion, or lifestyle simply do not matter legally unless they materially harm the child or implicate a statutory factor. If it bothers you but does not materially affect the child, it will not carry weight.
The Myth of the “Quick and Dirty” Stipulation You Can Fix Later
A common mistake is believing you can sign a bare-bones custody and parent-time agreement “just to get the divorce done,” then come back in a few months to “renegotiate.”
Courts do not treat stipulated custody orders as temporary, disposable, or easily revisited. While a lower evidentiary standard may apply to a stipulated custody order over a fully adjudicated order, a showing of substantial, material change in circumstances must still be shown.
Parents frequently argue:
- “We only agreed to that schedule to avoid a fight.”
- “I never meant for it to be permanent.”
- “We planned to revisit this later.”
Courts don’t care unless the decree explicitly says the order is temporary or will be revisited or reviewed at some future time or in the event of the occurrence of a particular event or events. If you treat a custody stipulation like a placeholder, the law will not.
Buyer’s remorse is not a change in circumstances.
Why the Standard Is So High
The law protects children from instability, repeated litigation, and parents using modification petitions as leverage. The substantial-change requirement exists to stop custody from becoming a revolving door.
When Modification Is Not Appropriate
Common situations that fail to meet the statutory standard:
- You are frustrated with the other parent.
- Your child expresses mild preferences.
- You want more time without any change in circumstances having arisen first.
- The other parent’s decisions annoy you, even though reasonable minds can differ.
- Temporary or expected life changes.
- No evidence of adverse impact on the child’s welfare.
These are not legal grounds for modification.
Practical Advice Before You File
- Document the “then vs. now” changes. Courts care about deltas—actual, provable material and substantial changes in circumstances—not frustrations.
- Use dispute-resolution mechanisms first before petitioning to modify the custody and/or parent-time award if your decree requires them.
- Assess risk realistically. Courts may order the unsuccessful petitioner to pay the other parent’s fees if:
- the court finds that an action to modify custody or parent-time is filed or answered frivolously and, in a manner, designed to harass the other party;
- a petition to modify custody or parent-time provisions of a court order is made and denied, and if the court determines that the petition was without merit and not asserted or defended against in good faith;
- a motion or petition alleges noncompliance with a parent-time order by a parent, or a visitation order by a grandparent or other member of the immediate family where a visitation or parent-time right has been previously granted by the court.
- Build an evidentiary record. Unsupported assertions lose.
Custody Modification Is Possible, But It’s Not Routine and It’s Not Easy
Utah law requires a substantial, material change in circumstances—something meaningful, something lasting, something that affects the child’s wellbeing. Custody modification in Utah is possible only when justified by real, material, post-order change and only when the modification demonstrably benefits the child. The law prioritizes stability, not parental (or even child) dissatisfaction. If your facts align with the statute, the court will listen. If they don’t, no amount of argument will substitute for evidence.
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[1] See also Kramer v. Kramer, 738 P.2d 624 (Supreme Court of Utah 1987):
“The ‘change of circumstances’ threshold is high to discourage frequent petitions for modification of custody decrees. The test was designed to “protect the custodial parent from harassment by repeated litigation and [to] protect the child from ‘ping-pong’ custody awards.” (citing Hogge v. Hogge, 649 P.2d at 53-54.1).
[2] But even the Taylor v. Ellison decision recognizes exceptions:
¶ 12 As a general matter, “[b]efore modifying a custody order, the court conducts a bifurcated inquiry to determine … [whether] there has been a substantial and material change in the circumstances upon which … [custody was awarded and] whether a modification is in the best interests of the child.”
Hudema v. Carpenter, 1999 UT App 290, ¶ 22, 989 P.2d 491. Generally, the trial court need “not consider evidence of the child’s best interests until it finds changed circumstances.” Id. (citing Wright v. Wright, 941 P.2d 646, 650–51 (Utah Ct.App.1997) (“[O]nly if a substantial change of circumstances is found should the trial court consider whether a change of custody is appropriate given the child’s best interests.” (internal quotation marks omitted))).
¶ 13 The requirement that the district court find a change in circumstances before modifying a custody order serves two policies. “First, the emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability….” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). Thus, requiring a change in circumstances before changing a custody arrangement protects children from the deleterious effects of “ping-pong” custody awards. See Wright, 941 P.2d at 651. The second policy is based in the principles of res judicata, for “courts typically favor the one-time adjudication of a matter to prevent the undue burdening of the courts and the harassing of parties by repetitive actions.” Elmer, 776 P.2d at 602; see also Smith v. Smith, 793 P.2d 407, 409–10 (Utah Ct.App.1990) (explaining the applicability of res judicata principles “in divorce actions and subsequent modification proceedings”).
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¶ 14 “However, the res judicata aspect of the rule must always be subservient to the best interests of the child.” Elmer, 776 P.2d at 603. “The courts have long held that even when an initial decree has adjudicated the best interests of a child, a subsequent proceeding could reopen that decree if material facts were not before the court or if the circumstances … had subsequently changed….” Id. But “custody decrees are not always adjudicated, and when they are not, the res judicata policy underlying the changed-circumstances rule is at a particularly low ebb” and must not be so inflexible as to categorically foreclose examination of the child’s well-being. See id.; see also Smith, 793 P.2d at 410. This is because “an unadjudicated custody decree is not based on an objective, impartial determination of the best interests of the child” and “may in fact be at odds with the best interests of the child.” Elmer, 776 P.2d at 603; see also Smith, 793 P.2d at 410. Because the ultimate objective in such cases is the impact on the child of a proposed change in custody, “[t]he best interests of the child should never be lost sight of, and rules on change in custody should not be so rigid that this overarching principle is not followed.” See Elmer, 776 P.2d at 604 (internal quotation marks omitted). Accordingly, the Utah Supreme Court has held that “in change of custody cases involving a nonlitigated custody decree, [the district court] … should receive … evidence that pertains to the best interests of the child.” Id. at 605.
[3] Because “[t]he required finding of a material and substantial change of circumstances is statutory, … [n]either this court nor the supreme court has purported to—or could—alter that requirement.” Zavala v. Zavala, 2016 UT App 6, ¶ 16, 366 P.3d 422; see also Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”). Thus, “only if a substantial change of circumstances is found should the [district] court consider whether a change of custody is appropriate given the child’s best interests.” Wright v. Wright, 941 P.2d 646, 651 (Utah Ct. App. 1997) (quotation simplified).
[4] But see this part of the Doyle opinion:
¶ 13 Although the analytical framework requiring bifurcation of these determinations is clear, “[t]his framework says nothing … about how a trial court must receive evidence.” Huish v. Munro, 2008 UT App 283, ¶ 17, 191 P.3d 1242. Cases decided subsequent to the establishment of this framework have recognized that trial courts have discretion to “deci[de] to merge the best interests of the child into the changed circumstances test … [,] particularly … when ‘the initial custody award is premised on a temporary condition, a choice between marginal custody arrangements, … or similar exceptional criteria.’ ” Walton v. Walton, 814 P.2d 619, 621 (Utah Ct.App.1991) (quoting Maughan, 770 P.2d at 160). Moreover, in the present case, as is quite frequently the situation, “the evidence supporting changed circumstances is … the same evidence that is used to establish the best interests of the child,” Moody v. Moody, 715 P.2d 507, 511 (Utah 1985) (Daniels, Dist. J., concurring). And a trial court is granted “wide discretion in controlling the mode and order of the presentation of evidence,” Huish, 2008 UT App 283, ¶ 18, 191 P.3d 1242 (citing Utah R. Evid. 611(a) and Paulos v. Covenant Transp., Inc., 2004 UT App 35, ¶ 20, 86 P.3d 752), “provided it ke[eps] its analysis appropriately bifurcated,” id. Stated more succinctly, “it is the bifurcation of the analysis—not the literal bifurcation of the proceedings—that matters.” Id.