418 P.3d 819
Wyo.2018Background
- Parents divorced in 2008; original decree awarded joint legal custody with Mother as primary residential custodian and a liberal alternating-visit physical schedule (~48% time with Father). Father later moved to stay nearby.
- Mother petitioned in 2016 to modify custody, alleging breakdown of joint custody: poor parental communication, children's behavioral/mental-health problems, conflicts during Father’s custody periods, and one child refusing visitation with Father.
- District court held an evidentiary hearing; multiple witnesses testified including both parents, children, and psychologists. Court found parental communication had deteriorated, children experienced stress/anxiety from frequent transitions and parental disparagement, and joint custody had become untenable.
- Trial court modified the decree: Mother awarded primary custody; Father given alternating weekend/holiday and summer visitation (one child had reached majority by the entry of the order).
- Father appealed, arguing (1) no material change of circumstances; (2) any change did not affect the children; (3) modification was not in children’s best interests; and (4) the court abused discretion by denying his Rule 35 motions to order psychological exams of Mother and the children.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| 1. Whether a material and substantial change of circumstances justified reopening the custody order | No material change since the original order; long-standing issues are not new | Joint custody was no longer working due to communication breakdown and worsening child behavior | Court: No abuse of discretion—facts (communication failures, increased child stress/behavior, untenable joint custody) supported reopening the order |
| 2. Whether any material change affected the welfare of the children | Changes did not demonstrably affect children | Children’s therapists and children’s testimony showed anxiety, sleep problems, refusal to visit, and harm from parental disparagement | Court: Denial of abuse of discretion—evidence showed impact on children's welfare |
| 3. Whether changing custody served the children’s best interests | Father is fit; change inconsistent with findings that Father is competent and has good relationships with children | Although both parents are fit, Mother’s home offers more structure and stability; children fared better there | Court: Modification to give Mother primary custody with Father visitation was in children’s best interests |
| 4. Whether trial court erred denying Father’s W.R.C.P. 35 motions for psychological exams | Examinations by Father’s choice psychologist were necessary because children’s mental states were in controversy and to rebut Mother’s expert | Children were already in treatment; Father failed to show good cause or that the information couldn’t be obtained from existing providers | Court: No abuse of discretion—Father failed to show good cause or include supporting transcript; denial affirmed |
Key Cases Cited
- Bishop v. Bishop, 404 P.3d 1170 (Wyo. 2017) (standard of abuse-of-discretion review for custody modification)
- Gurney v. Gurney, 899 P.2d 52 (Wyo. 1995) (joint custody may be modified when parents cannot cooperate and arrangement fails)
- Schlagenhauf v. Holder, 379 U.S. 104 (1964) (movant under Rule 35 must show each contested condition is genuinely in controversy and good cause for examination)
- Kreuter v. Kreuter, 728 P.2d 1129 (Wyo. 1986) (material change necessary to reopen custody order)
- Drake v. McCulloh, 43 P.3d 578 (Wyo. 2002) (deference to trial court credibility findings)
- In re TLJ, 129 P.3d 874 (Wyo. 2006) (burden on movant to show material change affecting child’s welfare)