OPINION
¶ 1 Amber S. Taylor (Mother) appeals the district court's decision to enforce a relocation provision of a stipulated divorce decree that automatically transferred physical custody of the parties' two children to Clinton J. Elison (Father) without first considering whether a change in the existing physical custody would be in the children's best interests. We reverse and remand.
BACKGROUND
¶ 2 In May 2000, Mother and Father were married, and the marriage resulted in two children. The couple separated in November 2004, then divorced. The divorce decree was entered by stipulation in July 2005.
1
The
¶ 3 At the time of the divorce, Mother, Father, and the children resided in Iron County. In 2006, however, Father relocated to Salt Lake County and Mother relocated to Washington County with the children. Because Mother had not moved from Utah, the relocation provision was not triggered, and Mother retained physical custody.
¶ 4 In February 2009, Mother planned to move from Washington County to Flagstaff, Arizona, with the children, who were then five and seven years old. At that time, over four years had passed since the parties had separated, and Mother had been the children's primary caregiver during that time. Because this move would trigger the divorce decree's relocation provision, Mother petitioned to modify the decree so she could retain custody of the children. In May 2009, while her petition for modification remained pending, Mother and the children moved to Flagstaff. Father then petitioned for temporary modification of custody, requesting that the court transfer physical custody of the children to him pursuant to the relocation provision, pending resolution of Mother's petition to modify. Mother responded with her own petition for temporary modification of custody, asking the court to allow the children to remain with her while her petition to modify remained pending.
115 In July 2009, after a hearing on Mother's and Father's competing petitions for temporary modification of custody, the district court denied Mother's petition for temporary modification and transferred custody of the children from Mother to Father. In so doing, the district court acknowledged that although Father had petitioned for temporary modification of custody, the purpose of his petition was not to modify but to enforce the relocation provision by having custody of the children transferred to him due to Mother's move from Utah. The district court reasoned that "[the change of custody from [Mother] to [Father] is not a modification of the [dlecree" but was instead "enforcement of the decree." The court thus stated that it was "granting [Father]'s motion for temporary orders, but not as such," for although it was ruling in Father's favor, it was "enfore[ing] ... the decree ... [and] not [granting] a temporary order." Accordingly, the district court's ultimatе decision was to enforce the divorce decree. 2
¶6 The district court began its analysis by briefly conducting the bifurcated inquiry required by Utah law in custody modifications cases where the court must consider whether "there has been a substantial and material change in the cirenmstances upon which" custody was awarded and "whether a modification is in the best interests of the child." See Hudema v. Carpenter,
¶7 In considering Mother's petition for temporary modification of custody, the district court next looked to rule 106 of the Utah Rules of Civil Procedure, which provides that "[dJuring the pendency of a petition to modify, the court may order a temporary modification of custody ... to address an immediate and irreparable harm ..., provided that the modification serves the best interests of the child." Utah R. Civ. P. 106(b)(1)(B). The district court stated that it did not "see any immediate or irreparable harm here regardless of which parent has these children in his or her primary custody." The court reasoned that "[the children will not be living in the Washington County ... area either way" and neither Flagstaff nor Salt Lake County "is an unsatisfactory place for children to live." The district court further reasoned that "(there will be long travel fоr the children [to] visitf ] with the noncustodial parent, regardless of who has the primary custody of the children [and tlhe distance doesn't change just because one party has custody." The district court noted that "the children ... are not settled in the Flagstaff area ... [because they] haven't really been there long enough to be particularly settled there" so "[they may be ... more familiar with [Father's Salt Lake County] residence than the Flagstaff residence." The court concluded that it did not "find any basis for [it] to grant temporary orders which are at variance with the existing decree." Viewing the decree's relocation provision as controlling, the district court denied Mother's rеquest that the children remain in her custody while her petition to modify was pending and instead enforced the divorce decree, transferring physical custody of the children to Father. 3 Mother appeals.
ISSUE AND STANDARD OF REVIEW
¶8 Mother challenges the district court's decision to enforce the relocation provision in the divorce decree, transferring physical custody of the children from Mother to Father without first considering whether a change in custody would be in the children's best interests. A district court's award of custody is reviewed for abuse of discretion. See Hudema,
ANALYSIS
¶9 In considering Mother's and Father's competing petitions for temporary modification of custody, the district court ultimately decided to enforce the divorce decree. In its analysis, however, the court applied not only the standard bifurcated custody modification analysis applicable to a petition for permanent modification of custody, see Hudema v. Carpenter,
¶10 The district court's decision to enforce the divorce decree and immediately transfer custody to Father turned in significant part on its conclusion that because the
¶11 Turning first to the bifurcated custody modification analysis, Mother argues that the district court abused its discretion by enfore-ing the divorce decree and failing to adequately consider the best interests of the children when it transferred custody of the children to Father based solely on the relocation provision in the divorce decree. Father responds that the district court properly determined that a change in cireumstances had not occurred because the possibility of Mother relocating outside of Utah had been contemplated by the divorcee decree. Father thus asserts thаt because there was no change in cireumstances the district court was not required to consider the children's best interests. Mother counters that because she and Father had stipulated to the divorce decree, the relocation provision was unadjudicated and therefore was not presumptively aligned with the children's best interests. Thus, according to Mother, the district court should have considered whether transferring custody from one parent, who had been the children's primary caregiver, to the other parent, based solely on a stipulated relocation provision was in the best interests of the children.
¶12 As a general matter, "[blefore modifying a custody order, the court conducts a bifurcated inquiry to determine ... [whether] there has been a substantial and material change in the cireumstances upon which ... [custody was awarded and] whether a modification is in the best interests of the child." Hudema,
¶13 The requirement that the district court find a change in cireumstances before modifying a custody order serves twо poli-cles. "First, the emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability...." Elmer v. Elmer,
114 "However, the res judicata aspect of the rule must always be subservient to the best interests of the child." Elmer,
115 In this case, the district court conducted a prototypically bifurcated custody modification analysis and first considered, as a threshold matter, whether a change in circumstances had occurred that warranted modification of the divorcee decree. The district court focused almost exclusively on the fact that Mother and Father had already contemplated what would occur if Mother relocated outside of Utah to anywhere other than Las Vegas and had agreed that in the event of such a move custody of their children would transfer from Mother to Father. The district court thus concluded that "thfel move was contemplated at the time of the [divorce] decree ... [so] the reasons for the move ... are irrelevant ... [blut [the] move has consequences ... [because] the [divorce] decree specifically provided that a change in custody would oceur if [Mother] ... moved ... from ... Utah." Having determined that no change in cireumstances had occurred that warranted further inquiry into the children's best interests, the district court stated only that when it had initially entered the decree with its relocation provision, it had "already determined that [transferring eusto-dy] would be in the best interests of the children ... primarily because the parties stipulated to it."
T 16 Although the district court explicitly recognized that the divorce decree had been stipulated, it viewed the stipulated nature of the relocation provision as strengthening rather then undermining its conclusion that it need not consider the best interests of the children. As discussed above, however, Utah law requires a different analytical approach when a divorcee decree has been stipulated rather than being the product of judicial serutiny, and, accordingly, the district court should have considered the children's best interests by taking into account the existing cireumstances rather than simply considering the provisions of the decree. See id. (holding that "in change of custody cases involving a nonlitigated custody decree, [the district court] ... should receive ... evidence that pertains to the best interests of the child"). Such an inquiry into the children's best interests was particularly crucial here where enforcement of the relocation provision resulted in an actual change of custody that was of potentially enormous significance to the children-a change that disrupted rather than preserved the children's stability in their existing, long-term placement.
4
See generally
¶17 As we have discussed, however, our review is not limited to the standard bifurcated custody modification analysis. This case is procedurally distinct because it also involves petitions for temporary modification of custody under rule 106 of the Utah Rules of Civil Procedure, which permits "temporary modification of custody" "[djur-ing the pendency of a petition to modify" a divorcee decree. See Utah R. Civ. P. 106(b)(1)(B). Because the district court relied on rule 106 as a basis to enforce the divorce decree, we next address application of that rule to the facts of this case.
118 Rule 106 provides that "during the pendency of [a petition to modify a divorce decree,]" "[the ... decree sought to be modified remains in effect." Id. R. 106(b)(1). Rule 106 further states that "[dJuring the pendency of a petition to modify, the court may order a temporary modification of eusto-dy ... to address an immediate and irreparable harm ..., provided that the modification serves the best interests of the child." Id. R. 106(b)(1)(B). Here, Mother and Father filed competing petitions for temporary modification of custody: Father's objective was to have the relocation provision of the divorce decree enforced and have custody of the children transferred to him; Mother's objective was to retain physical custody of the children, as had been the status quo of the custody arrangement for the past four years. The district court "grant[ed] [Father}'s motion for temporary orders, but not as such," reasoning that "a change of custody from [Mother] to [Father] is not a modification of the decree" but was instead "enforcement of the decree" and explained that its decision was to "enforce ... the decree ... [and] not [grant] a temporary order." The district court thus denied Mother's petition for temporary modification, reasoning that it did not "see any immediate or irreparable harm ... regardless of which parent has these children in his or her primary custody," and thus concluded that it did not "find any basis for [it] to grant temporary orders which are at variance with the existing decree."
¶19 In arriving at this decision, the district court characterized Father's petition as a request for enforcement of the divorce decree rather than for temporary modifica
20 In most custody modification seenar-ios involving the geographical relocation of the parent designated by the decree as the child's primary custodian, the noneustodial parent's request for temporary physical custody would necessarily be a request that the court change physical custody from one parent to the other contrary to the existing terms of the decree. Under such circumstances there would typically be no distinction between enforcing the divorce decree as written and maintaining the status quo of the custody arrangement. In this case, however, because of the self-effectuating contingency of the relocation provision, the roles are reversed, and the parent with actual physical custody is placed in the unusual position of requesting a temporary modification of the decree to allow the existing custody arrangement to continue while her petition for a permanent change in the decree's relocation provision is litigated. In other words, because of the singular terms of this decree, Mother must petition for a temporary modification to maintain the custodial status quo rather than Father seeking a temporary modification that would change the custodial status quo. The facts of this case thus raise the question of whether the "temporary modification of custody" contemplated by rule 106 refers to the technical modification of the custody provisions in a divoree decree or to an actual change of physical custody from one parent to another.
{21 Rule 106 appears on its face to be aimed at maintaining the status guo of a custody arrangement, the presumption being that custody should be left undisturbed pending a petition to modify, unless a change in custody is required "to address an immediate and irreparable harm." See id. Interpreting the "temporary modification of custody" contemplated by rule 106 tо refer to the technical modification of the custody provisions in a divorce decree is consistent with the rule's introductory language that "[the ... decree sought to be modified remains in effect during the pendency of the petition" to modify. See id. R. 106(b)(1). But such an interpretation seems inconsistent with the rule's overarching purpose to preserve the custody status guo, especially in the ciream-stances of a case like this one where literal enforcement of the decree results in actual physical custody being transferred from one parent to the other. Under such an interpretation, the resulting change of custody would presumptively ocсur automatically, regardless of whether the custodial parent had been the child's long-term primary caregiver; and the resulting change of custody could only be prevented "to address an immediate and irreparable harm," see id. R. 106(b)(1)(B). However, interpreting the "temporary modification of custody" contemplated by rule 106 to refer to an actual change in custody is consistent with the rule's purpose, for such a reading permits a child to remain with the existing custodial parent, unless cireumstances that pose an imminent threat to the child's well-being require an immediate change.
122 An interpretation favoring the actual custody status quo is in keeping with the overarching importance that the legislature and our courts have attached to the best interests of children caught in the rolling
123 Here, the district court, in essence, approached the matter as if no change in custody resulted from its decision because, from the perspective of the divorce decree, the custody provisions had not been modified but had been enforced. While the district court was technically correct in characterizing Father's petition as one to enforce the divorce decree and Mother's petition as one to modify the decree, the overriding consideration of rule 106 must be that "modification [should] serve[] the best interests of the child." See Utah R. Civ. P. 106(b)(1)(B). In other words, the court must view the requested modification from the perspective of the child who will be affected by the modification of custody, and the court's analysis therefore cannot be cireumscribed by the bare provisions of the decree. With that in mind, it was Father's petition, not Mother's, that sought to modify the custody status quo, and that status guo should be the starting point of any best interests analysis under rule 106.
124 In summary, regardless of whether the divorce decree itself was technically modified by the district court's decision, an actual change in custody resulted when the court temporarily transferred custody of the children from Mother to Father. This change in custody was principally the result оf the court's enforcement of a stipulated divorce decree with unnecessarily limited consideration of whether the resulting change was in the children's best interests. As we have discussed, such an approach is contrary to our well-established law, even had the district court been considering Mother's petition to permanently modify the divorcee decree. See supro % 12-16. We therefore conclude that, under the facts of this case, the district court misapplied rule 106.
CONCLUSION
T25 In applying the bifurcated custody modification analysis that is typically used in permanent custody modifications, the district court gave undue weight to the changed circumstances prong whеn considering a request to modify an unlitigated divorce decree and, thus, failed to consider whether a change in physical custody would be in the
T 26 WE CONCUR: J. FREDERIC VOROS JR., and MICHELE M. CHRISTIANSEN, Judges.
Notes
. To be precise, the district court adjudicated some provisions of the divorce decree-specifically, provisions concerning the amount of child support to be paid. However, the custody arrangement and, in particular, the relocation provision were agreed upon by the parties and en
. This appeal is from the district court's final order enforcing the parties' divorce decree. In the course of its decision, however, the court also considered and denied Mother's petition for temporary modification of custody. The facts and issues underlying both the district court's decision to enforce the divorce decree and its denial of Mother's petition for temporary orders are so intertwined, however, that we necessarily address the reasoning of both even though, considered alone, the court's ruling on temporary orders would be interlocutory.
. Immediately after the district court issued its ruling, Mother asked if the court would reverse its decision if she moved back to Utah. The district court stated that it "d[id nolJt have any basis for doing that"" because there is no "provision [in the decree] for a party who moves away and then moves baсk."
. The district court concluded that because the children would have to relocate to a new residence whether they lived with Mother or Father and because the children would also be required to travel a considerable distance to visit either parent, the children would be uprooted regardless of which parent had custody. See supra 17. While the potentially disruptive effects on the children of Mother's geographical move will be an important part of any custody analysis stemming from Mother's relocation, the concomitant effects of removal from a longstanding primary caregiver is "a critically important factor" that the district сourt did not consider. See Hudema v. Carpenter,
. Our conclusion here is based on the district court's failure to consider whether a transfer of custody would be in the children's best interests, and our decision should not be read to imply that we favor any particular result in the dispute between the parties. Rather, that is a decision that the district court must make on remand based on all the pertinent circumstances.