Mr. and Mrs. Becker divorced in April 1979. Mr. Becker was awarded custody of the parties ‘ daughter Michelle. At the time of the initial decree of divorce Mrs. Becker was out of town and had custody of the parties’ daughter Michelle.

She returned to the state and delivered custody of the child to Mr. Becker and moved to set aside the divorce decree. Her motion was granted.

At a trial in November 1979 it was ruled that Mr. Becker would continue to having custody of Michelle pending home evaluations by the Division of Family Services.

After the home evaluations went completed a psychologists report was submitted. A final hearing was held in October 1980. The Judge found that both parents were fit and proper parents but that permanent custody should be with Mr. Becker. Although the psychologist had recommended that the parents share joint custody, the Judge did not find this to be in the child’s best interests. However, he did award liberal visitation rights to Mrs. Becker.

Based on these rulings, an amended decree of divorce was entered in December 1980.

In 1983, upon learning that Mr. Becker planned to relocate with the child to the state of Washington, Mrs. Becker filed a petition to modify, alleging several changes of circumstances.

Among her allegations of changed circumstances included: the planned out of state relocation by Mr. Becker, her belief that the child desired to live with her, a claim that the child was not being properly cared for and supervised by Mr. Becker.

She claimed in a later court filing that the facts of her case were were remarkably similar to those in Hogge v. Hogge, 646 P.2d 51 (1982). She claimed that this was so because, at the time of the original decree, she had been young, immature, and not fully capable of caring for the child. Now, however, she alleged that she was mature, in a stable marriage with a husband and two children, and fully capable of supporting the child.

The district court found that there was no substantial change in circumstances that would justify reopening the original custody determination.

However, the Court found that Mr. Becker’s relocation to Washington was a change in circumstances that did justify reopening the issue of visitation. The court awarded Mrs. Becker eight weeks of visitation with Michelle during the summers, as well as holiday visitation at Christmas and spring break.

Mrs. Becker appealed the decision.

The Utah Supreme Court upheld the trial judge’s decision. It found that the district court had properly followed the bifurcated procedure for deciding a petition to modify custody. It had first determined as a threshold matter whether there was a change in circumstances that would justify reopening the custody case.

The Court held that the trial court had not abused its discretion in deciding not to reopen the custody case. The relocation in itself was not a reason to consider a change of custody. The relocation did not have “a material relationship to or a substantial effect on parenting ability or the functioning of the presently existing custodial relationship.” Thus, the materiality requirement for a change in circumstances was not met. The change may have been substantial, but it did not “essentially affect the custodial arrangement.”

With respect to Mrs. Becker’s claim that thaw facts of her case were similar to those in the Hogge case, the Court found the facts to be readily distinguishable. In Hogge, the mother had suffered a mental decline and loss of parenting capacity due to the stress of the divorce. Her recovery of her stability and parenting capacity was a substantial and material change in circumstances. In the instant case, however, Mrs. Becker had been in the initial divorce case to be a fit and proper parent. Although she may have been young and somewhat irresponsible at the time of the divorce, there was no evidence that she had been suffering from mental illness or a significant loss of parenting capacity.

The rationale of requiring a showing of a substantial and material change in circumstances before a custody award may be reopened rests on the policy of maintaining stability in custodial placements. Because of this, a custody case may not be reopened unless the facts have completely changed.

Although the custody matter was not able to be reopened, the Court found it proper that the visitation orders were changed. A change in circumstances may be material to one issue but not another. Mr. Becker’s relocation, although it was not grounds to reopen the custody issue, was material to the question of visitation.

In sum, in order to reopen a custody matter, a substantial change in circumstances must be shown. This substantial change must also be material to the issue for which a modification is sought. Mr. Becker’s relocation in itself was not grounds to reopen custody. But even though a substantial change in circumstances may not be material to be he custody issue, it may be material to a different issue, such as visitation. In the instant case, Mr. Becker’s relocation was a substantial change in circumstances that justified reopening the visitation issue.

See Becker v. Becker, 684 P.2d 608 (1984).

Together, the Hogge and Becker cases give fairly good guidance for how a custody case may be reopened. Some practitioners refer to this as the Hogge-Becker standard for reopening a custody determination.

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.