Material change of circumstance?

[thefid]

My state is Utah.

1) If I go into court saying, 27% of nights before the decree and consistantly 40% of nights after, is that sufficient to request and receive joint custody?

Problem 1... Current decree states minimum time when we do not agree and liberal time otherwise. Her position is that it does not consist a change of circumstance as it is liberal time.

Problem 2... Judge didn't like the way it was previously written up by (recently fired) lawyer and threw out my petition in January at pretrial.

2) is there a time limit before resubmitting a rewritten motion?
3) what are my chances of getting joint physical custody based on these numbers?
4) what will increase the chances even more?
5) what will decrease my chances?

Any advice would be appreciated. I have been wrong in the past, I cannot afford making any mistakes this time.

Thanks

 

[LdiJ]

My state is Utah.

1) If I go into court saying, 27% of nights before the decree and consistantly 40% of nights after, is that sufficient to request and receive joint custody?

Problem 1... Current decree states minimum time when we do not agree and liberal time otherwise. Her position is that it does not consist a change of circumstance as it is liberal time.

Problem 2... Judge didn't like the way it was previously written up by (recently fired) lawyer and threw out my petition in January at pretrial.

2) is there a time limit before resubmitting a rewritten motion?
3) what are my chances of getting joint physical custody based on these numbers?
4) what will increase the chances even more?
5) what will decrease my chances?

Any advice would be appreciated. I have been wrong in the past, I cannot afford making any mistakes this time.

Thanks

Its hard to give you answers without knowing the exact wording of your order, but based on the little that you did give us, it doesn't sound like you have a change of circumstance.

 

[thefid]

Decree says: Petitioner and Respondent [me] are awarded joint legal custody of the minor children... Petitioner is awarded prim*ary physical custody of the children, and her residence should be designated as the children's pri*m*a*r*y residence. Respondent is awarded liberal and reasonable parent time with the minor children as the parties can agree between them or, in the absence of their agreement, in accordence with the provisions of Utah Code Ann 30-3-35.

The following laws may be relavent:

78-45-7.2. Application of guidelines -- Rebuttal.
(9) (a) A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.

(b) For purposes of Subsection (9)(a), a substantial change in circumstances may include:
(i) material changes in custody;
(ii) material changes in the relative wealth or assets of the parties;
(iii) material changes of 30% or more in the income of a parent;
(iv) material changes in the ability of a parent to earn;
(v) material changes in the medical needs of the child; and
(vi) material changes in the legal responsibilities of either parent for the support of others.

78-45-2. Definitions.
(13) "Joint physical custody" means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support.

 

[BelizeBreeze]

Your order states Utah Code Ann 30-3-35 so why are you citing another code?

 

[thefid]

Your order states Utah Code Ann 30-3-35 so why are you citing another code?

That code has little, if anything, to do with my questions.That is the minimum visitation schedule. The other codes are listed as possible support of my desire to modify the current decree in the future. Remember, I have the kids 40% of the nights, not 20% as that code requires.

 

[LdiJ]

That code has little, if anything, to do with my questions.That is the minimum visitation schedule. The other codes are listed as possible support of my desire to modify the current decree in the future. Remember, I have the kids 40% of the nights, not 20% as that code requires.

The point is that your order states liberal and reasonable parenting time, with the proviso that if you can't agree you follow the statute.

That is exactly what you are getting. Therefore, you don't have a change of circumstance.

So think this through....why do you want the change? Could there be some factor that indicates a real change in circumstance?

 

[BelizeBreeze]

That code has little, if anything, to do with my questions.That is the minimum visitation schedule. The other codes are listed as possible support of my desire to modify the current decree in the future. Remember, I have the kids 40% of the nights, not 20% as that code requires.

The code has everything to do with your question.

 

[thefid]

The point is that your order states liberal and reasonable parenting time, with the proviso that if you can't agree you follow the statute.

That is exactly what you are getting. Therefore, you don't have a change of circumstance.

So think this through....why do you want the change? Could there be some factor that indicates a real change in circumstance?

I think that is what the judge was saying just before he threw out my case. I know I will have to word it differently than before, I am just trying to figure out the best way.

Why I want the change has to do with how my kids are feeling. My ex is currently using the kids as a control issue with me. For example, I work nights so my days are free. The kids have their Spring Break/Easter weekend and were out of school. I offered to watch the kids while she (the ex) was at work, she refused. Then when my brother's wife asked (who is in town for the weekend, with her son, and spending it with my mother), my ex agreed. The kids spent 2 nights at my mother's place 2 miles down the road from me. It just so happened that I previously agreed to spend those 2 days helping my mother clean out her garage. The real kicker was when my sister-in-law left for a few minutes and my ex showed up early. She flipped out when she realized I was alone with the kids (is that a sin?). Then she proceeded to take her anger out on the kids, and later yelled at my sister-in-law for leaving.

So, my main reason is to remove this control from her hands and place it in a position where the kids have more control as they mature. I feel that my ex will do more harm to her relationship with our boys if she continues to maintain her control. If I do not have a change in circumstance, then should I request a change in the parenting plan instead? Could I work both issues together to help improve my case? What should I be careful of if I request the change in the parenting schedule?

Thanks for helping me think this through before using up the courts time.

 

[thefid]

The code has everything to do with your question.

Then please enlighten me as to how?