There is a case in Utah that may almost precisely be on point for the circumstances you describe, Hogge v. Hogge, 649 P.2d 51, 54 (Supreme Court of Utah 1982). Here are some excerpts from that decision:
It is apparent that a material circumstance relied upon in originally awarding appellant [who was awarded custody at the trial court level] custody of the infant twins was the fact that respondent was then unable to care for the children because of emotional illness attendant to the divorce. At the hearing on the petition to modify, respondent produced ample evidence that since the divorce she had overcome her emotional problems and had again become a capable, responsible parent. Based on this evidence, the district court specifically found that respondent’s “emotional stability had returned” and concluded “that a substantial change of circumstances has occurred since (appellant) was awarded custody of the minor children. . . in that (respondent’s) emotional problems have been overcome.” This finding, which is amply supported by the evidence, is sufficient to justify relitigation of the question of custody. Hence, the court properly proceeded to the second step in the bifurcated process-a de novo consideration of all evidence bearing on the question of the best interests of the children.
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Since the district court found no fault with the care of the children in his custody, appellant contends that it was neither “reasonable” nor “necessary” to transfer their custody to respondent, and the court’s order doing so would arbitrarily uproot them and engender emotional harm.
Appellant’s argument puts too narrow a construction on the standard for modification of custody. The court is not required to determine merely what is “reasonable and necessary” for the welfare of the child. Rather, it must decide what is “reasonable and necessary” for the “best interests ” of the child-a standard which may frequently and of necessity require a choice between good and better.
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Evidence at the hearing in this case demonstrated that during the entire time appellant had custody of the twins they were placed in a day-care facility because appellant and his mother and stepfather, with whom he lived, all worked full-time during the day. Appellant testified that the children would remain in day-care even after his forthcoming remarriage because he would continue to work full-time and his 17-year-old fiancee intended to complete high school and also work part-time. Appellant further testified that to facilitate the twins’ adjustment to his remarriage, he and his new wife did not intend to take the twins into their new home immediately, but would leave them with appellant’s mother, picking them up only on weekends. Finally, although appellant’s fiancee testified that she had formed an emotional bond with the twins and thought of them as her own children, she stated that she wanted to wait “a long time” before having any children of her own.
With regard to respondent, evidence produced at the hearing demonstrated that she was a responsible, caring parent in whose custody the twins had blossomed during a two-month visit the previous summer. Further evidence showed that she was happily remarried in a stable family environment with a husband who was sincerely affectionate toward the twins and with whom she had a baby daughter. The district court also found that respondent’s new husband was steadily employed in a responsible job, and that respondent remained at home as a full-time mother to her children. In a child custody contest, the extent to which each contesting parent could care for the child personally is an appropriate consideration for the court. Lembach v. Cox, Utah, 639 P.2d 197, 200 (1981).
Weighing all the evidence in the instant case, we cannot say that the district court’s conclusion that the best interests of the three-year-old twins would be served by transferring their custody from appellant to respondent was “so flagrantly unjust as to constitute an abuse of discretion. …” Jorgensen v. Jorgensen, 599 P.2d at 512.
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Now, if you did not notice, Hogge is an old case (decided in 1982). Since then, the case and its holding has been distinguished by subsequent cases, including Kramer v. Kramer, 738 P.2d 624, 627 Supreme Court of Utah 1987): In essence, on its facts, Hogge creates only a narrow exception to the general rule spelled out more fully in [the case of Becker v. Becker, 694 P.2d 608 (Utah 1984)]-that ordinarily the change-of-circumstances prong of the Hogge test must focus only on the custodial parent. Any other approach will only promote “ping-pong custody awards,” precisely the evil Hogge was intended to eradicate. Hogge v. Hogge, 649 P.2d at 54. As Becker reiterated, “The rationale is that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed.” Becker v. Becker, 694 P.2d at 610. The narrow construction we place on Hogge is not an innovation or a change in our case law. Rather, it is consistent with the approach this Court implicitly has taken in applying the first prong of Hogge’s change of custody test. Every case that has relied on the Hogge analysis in reviewing a ruling on a petition for a change of custody has been based exclusively or primarily on an evaluation of the custodial parent’s circumstances. In the usual case, the noncustodial parent’s change of circumstances is relevant only to a determination of whether, under the second prong of the Hogge-Becker test, the best interests of the child warrant a shift in custody, an issue reached only after a change of custodial circumstances has been found and the custody issue has been reopened.
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