Monday, April 16, 2012

Relocation Clauses in Decrees that Change Custody are Unenforceable

Elison v. Elison, 2011 UT App 272, Utah Court of Appeals August 18, 2011

Father and Mother were divorced in November 2004.  The stipulated Decree of Divorce included a provision that transferred custody to Father if Mother relocated outside of Utah.  Mother moved and the District Court enforced the decree and the custody transferring provision.  Mother Appealed.

The Court of Appeals found that enforcement of status quo and best interests is the intent of Rule 106 rather than enforcement of the decree.  Rule 106 provides that the Decree that is to be modified stays in effect until the modification is complete.  The court may only change custody or parent-time to address and immediate and irreparable harm.

The Court read this rule to mean that during a modification action, the children should remain with the same primary custodian, unless remaining would threaten immediate and irreparable harm.  Reversed and Remanded

1 comment:

Scott Wiser said...

I don't quite read Taylor that broadly.

The case involved an unusual decree that provided for an automatic change in physical custody if the custodial parent ever relocated past a certain boundary without need of a best interests hearing. I fully concur with Judge Roth that an automatic change-in-custody provision should not have been enforced.

However, I do not read the case as requiring a showing of irreparable harm incident to temporarily adjusting parent-time, but not custody, incident to relocation. Otherwise, the case would be irreconcilable with Larson v. Larson and 30-3-37, which seems to contemplate an expedited process for adjusting parent-time incident to relocation.

I have mixed feelings about Judge Roth's treatment of stipulated versus "adjudicated" custody decrees. As a general rule, we want to encourage custody settlements, and giving parents the added assurance that their stipulation will "stick" even if the other side comes down with settlors remorse is a powerful selling point versus being told it will be easier for their ex to muck things up down the road. Also, there is case law holding that a stipulation constitutes an agreement of the parties that the facts necessary to support that agreement would have been proven but for their agreement dispensing with the need to put on evidence. I can understand the rationale for giving "default" custody decrees low-ebb treatment, but I would prefer to see stipulated decrees given the same weight as fully "adjudicated" decrees.


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