The Appellate Group

Civil Stalking Injunction

Harper v. Harper

Harper v. Harper, 2021 UT App 5 (Pohlman, J.)

Family Law: Custody Modification

Parent had primary physical custody of Child. Parent did not pick up Child from school because Parent was in the hospital, and Child missed several days of school. Father petitioned to modify custody, asserting that a material and substantial change in circumstances occurred—specifically, Child missing school and Parent’s health concerns. Although the court gave Father primary custody of Child during the two years it took to litigate the modification petition, the district court ultimately denied the modification petition, returning primary custody of Child to Parent. Father appealed. The Utah Court of Appeals affirmed, holding:

  • The district court did not abuse its discretion when it found that Parent’s health decline was temporary and at the time of the trial on the modification petition, Parent had recovered to the point Parent was at at the time of the divorce decree. Thus, there was not a substantial change in circumstances. And Father’s temporary primary physical custody of Child does not alone demonstrate a change of circumstances.
  • Note: The court noted in a footnote that in stipulated divorce decrees—rather than adjudicated divorce decrees—the policies underlying the changed-circumstances rule are at a particularly low ebb and a lesser showing of changed circumstances may support modifying a stipulated award than would be required to modify an adjudicated award.