426 P.3d 813
Wyo.2018Background
- Parents divorced in 2009; mother was primary custodian of two daughters. A stipulated modification in 2012 maintained mother's primary custody but expanded father's visitation and required mother to attend professional counseling.
- Father petitioned in 2015 (amended 2016) to modify custody to give him primary custody, alleging mother's continued instability, substance use, dangerous relationships, and a second suicide attempt; he also filed a contempt/show-cause motion for violations of the 2012 order.
- Evidence at a two-day hearing detailed numerous incidents (domestic violence involving mother's partners, arrests, intoxication episodes, prescription drug issues, delayed medical care for a child, public advocacy about an alleged rape that involved publicity and the children) and the mother’s refusal to comply with ordered counseling and the right-of-first-refusal provision.
- The district court found mother’s conduct showed instability and contempt for court orders, but denied modification because, despite the material changes, Father did not prove the children’s welfare had been affected; the children were described as generally well-adjusted and the counselor testified both parents were fit.
- The Wyoming Supreme Court held the district court abused its discretion: the post-2012 events (mother’s continued instability, refusal to counsel the children, involving children in publicity, and violations of visitation terms) amounted to a material change of circumstances affecting the children and justified reopening the custody order. The case was reversed and remanded for the district court to decide best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Father proved a material change in circumstances since the 2012 order | Jacobson argued mother's continued instability, substance use, violent relationships, violations of counseling and right-of-first-refusal, and involving children in publicity are material changes | Kidd argued children remained well-adjusted, counselor testified both parents fit, and there was little evidence the children were harmed | Court held there was a material change since 2012—mother's ongoing conduct and refusal to comply with counseling affected the children and justified reopening custody |
| Whether reopening requires objective evidence of actual harm to children | Father: not required; relevance to children's lives enough | Mother/district court: testimony of children being well-adjusted showed no demonstrable harm, so no modification | Court held showing relevance to children's welfare (not actual manifested injury) suffices for materiality; objective harm not required |
| Whether repeated failures to honor visitation/right of first refusal can show material change | Father argued such violations are evidence of material change under statute | Mother argued violations did not show harm to children | Court agreed statutory language permits considering repeated unreasonable visitation denials as evidence of material change and found violations relevant |
| Remand remedy | Father sought custody modification to him | Mother sought denial; district court denied modification | Court reversed and remanded for district court to determine whether modification is in the children's best interests |
Key Cases Cited
- Meehan-Greer v. Greer, 415 P.3d 274 (Wyo. 2018) (standard of review and custody modification principles)
- Bishop v. Bishop, 404 P.3d 1170 (Wyo. 2017) (two-step statutory test for custody modification: material change and best interests)
- Cook v. Moore, 357 P.3d 749 (Wyo. 2015) (planned relocation can be a material change before demonstrable harm)
- Jackson v. Jackson, 96 P.3d 21 (Wyo. 2004) (improvement in noncustodial parent's circumstances can constitute material change)