Mr. and Mrs. Hogge divorced in 1979. Mr. Hogge was awarded custody of their twin daughters. Mrs. Hogge was suffering from a decline in her mental functioning and accompanying loss of parenting capacity due to the divorce.
After the divorce, Mrs. Hogge recovered from the mental health issues she experienced as a result of the divorce. She remarried and had a baby with her new husband, who was an affectionate father and worked a steady job to provide for the family. Mrs. Hogge recovered her normal parenting skills.
Mrs. Hogge filed a petition to modify custody. After a trial she was awarded custody of the children. Mr. Hogge appealed.
The Utah Supreme Court heard the appeal. The Court clarified that there is a bifurcated procedure for determining a petition to modify custody. In order to reopen a custody decision, there is a threshold determination that must be made. If it is determined that the custody issue may be reopened, then the courts decide what type of custody arrangement is in the children’s best interests.
The Utah divorce statutes provide that the district courts have ongoing jurisdiction to modify a child custody award.
However, the legal principle of res judicata (a Latin phrase meaning “a matter previously adjudicated”) prevents a new decision from being made on the same set of facts and issues that have already been decided.
Because of this, in reopen a custody decision, a court must decide as a threshold matter whether there has been a substantial and material change of circumstances since the time of the prior court order. If there has not, then the petition to modify must be dismissed.
This threshold requirement serves as an appropriate barrier to repeated requests to modify custody based on insignificant or trivial factors, and thus avoids the specter of ping-pong custody awards.
If the court determines that there has been a substantial and material change of circumstances since the prior order, then the custody case may be reopened. In a petition for a change of custody or parent-time, the second step is then to determine what type of a custody or parent-time arrangement would be in the children’s best interest.
The Court in the Hogge case found that there had been a substantial change of circumstances by virtue of the fact that Mrs. Hogge had recovered her mental stability and had regained her ability to provide excellent care for the children following the divorce.
But Mr. Hogge complained that the Court still should not have upset the apple cart by changing custody where the children were happy and well-adjusted in his care.
The Court recognized the force of this argument, acknowledging the importance of stability in children’s lives. But this was not the only factor the court needed to look at in deciding what was in the children’s best interests.
Mr. Hogge also noted that he was a good parent who had been doing a great job of raising the twins. The Court also acknowledged this fact, but observed that custody determinations often come down to a choice between good and better.
For example, the Court noted that following the divorce Mr. Hogge had placed the children in a day care facility during the day while he was at work, whereas Mrs. Hogge was available to provide personal care for the children full-time. In addition, Mr. Hogge had recently become engaged to a 17 year old fiancé was not yet well acquainted with the children. Mr. Hogge was planning on leaving the children with his parents on weekdays and only provide care for them on the weekends, in order to facilitate the process of having the children become gradually accustomed to life with his fiancé.
Another factor favoring Mrs. Hogge was that the twins had really thrived and made remarkable progress in her care when she had had them for two months during the summer. They had developed a close bond with her new husband and their baby step sister as well.
Given all these factors, the Court could not find that the trial court had abused its discretion in awarding Mrs. Hogge custody of the twins.
The Hogge case is notable for clearly setting out the two-step procedure for deciding a petition to modify custody or parent-time. The courts must first decide as an initial matter whether or not there has been a substantial and material change of circumstances since the entry of the prior custody order. If there has not been such a change, then the petition must be dismissed. If there has been such a change, then the court proceeds to the second step of deciding what custody or parent-time arrangement would be in the children’s best interests.
See Hogge v. Hogge, 649 P.2d 51 (1982).
This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.
