Ross v. Ross
2019 UT App 104
Utah Ct. App.2019Background
- Mother and Father divorced by stipulated decree providing joint legal custody and equal physical custody of two children.
- Mother filed a notice of relocation under Utah Code § 30-3-37 seeking to move from Salt Lake County to Uintah County (~150+ miles) and take the children; she did not file a petition to modify custody.
- Father objected, arguing relocation would disrupt children’s schooling and his access, and that a petition to modify was required to change custody.
- A domestic relations commissioner recommended denying permanent relocation; Mother objected and the district court held a two-day evidentiary hearing on Mother’s objection to the recommendation.
- The district court concluded a petition to modify was not required, applied a best-interests analysis, allowed Mother to relocate with the children, and changed primary physical custody to Mother; Father appealed.
Issues
| Issue | Mother's Argument | Father's Argument | Held |
|---|---|---|---|
| Whether a court may change custody in favor of a relocating parent under a relocation notice without a petition to modify | Rule 106 references the relocation statute, so the petition requirement can be excused where § 30-3-37 allows modification; the court may modify custody via relocation proceedings | Rule 106 and § 30-3-10.4 require a petition to modify to change custody except in the narrow circumstances § 30-3-37 authorizes; here those circumstances do not apply | Court held a petition to modify was required; vacated the custody change and remanded for further proceedings |
Key Cases Cited
- Gullickson v. Gullickson, 301 P.3d 1011 (interpretation of procedural rules reviewed for correctness)
- Donnelly v. Donnelly, 301 P.3d 6 (statutory interpretation is reviewed for correctness)
- Simler v. Chilel, 379 P.3d 1195 (court’s interpretation of procedural rules reviewed for correctness)
- Pingree v. Pingree, 365 P.3d 713 (explaining § 30-3-37(4) conditional custody change when relocating custodial parent moves despite court denial)
- Jones v. Jones, 374 P.3d 45 (distinguishing custody modifications from parent-time modifications)
- Chaparro v. Torero, 436 P.3d 339 (court’s duty to ensure best interests and protect stability when transferring custody)