T.W. v. S.A. , 2021 UT App 132 ( 2021 )

2021 UT App 132THE UTAH COURT OF APPEALS
T.W.,
Appellant,
v.
S.A.,
Appellee.
Opinion
No. 20200397-CA
Filed November 26, 2021
Third District Court, West Jordan Department
The Honorable Dianna Gibson
No. 134401457
David Pedrazas, Attorney for Appellant
Laja K. M. Thompson, Attorney for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY
concurred. 1
HAGEN, Judge:
¶1 T. W. (Father) appeals the district court’s custody order
awarding S. A. (Mother) primary physical custody of their son
(Child). In so doing, the court rejected the custody evaluator’s
recommendation that Father be awarded primary physical
custody. The court also scheduled parent-time in accordance
with the minimum parent-time schedule in Utah Code section
30-3-35, as opposed to the optional increased parent-time
schedule in section 30-3-35.1. Father argues each of these rulings
was made in error. Because the court sufficiently supported the
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
T.W. v. S.A.
parent-time schedule it ordered as well as its rejection of the
custody evaluator’s recommendation, we affirm.
BACKGROUND 2
¶2 Father and Mother ended their relationship before Child’s
birth. The following year, Father petitioned for custody. Father
later moved to Grantsville, Utah to live with his now-wife and
her children, along with Father’s other child from a prior
relationship. Grantsville is approximately fifty miles from
Sandy, Utah where Mother resides.
¶3 Shortly after his move, Father requested a custody
evaluation. The court-appointed custody evaluator initially
recommended Mother be awarded primary physical custody,
but at a trial on that issue, the parties stipulated to joint legal and
physical custody, with each parent enjoying alternating weeks of
equal parent-time. The stipulated terms were then set forth by
the court in its parentage decree. At the time, the logistics of
complying with an alternating week schedule were relatively
easy because Child was not yet attending school.
¶4 Around the time Child was to begin kindergarten, a
dispute arose over whether Child would attend school near
Mother’s home in Sandy or near Father’s home in Grantsville.
Father moved for a temporary restraining order that would
specify where Child would attend school. After a telephonic
hearing, the court commissioner recommended that, for the time
being, Child would attend school in Sandy pending an
evidentiary hearing.
2. “We view the facts in the light most favorable to the trial
court’s findings, and therefore recite them accordingly.”
Andersen v. Andersen, 2016 UT App 182, ¶ 2 n.1, 379 P.3d 933(cleaned up).
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¶5 Child had been attending school for several months when
the evidentiary hearing was held in December. After conferring
with counsel off the record, the court expressed “some concerns
about the workability of [Child] residing in Grantsville and
going to school in Sandy or residing in Sandy and going to . . .
school in Grantsville.” The court reasoned that the alternating
week schedule was unworkable, and the parties agreed that now
that Child was in school “continuing the commute [was] not in
[his] best interest.” The court ultimately found that “the
commute from Sandy to Grantsville is approximately 50 miles
and can take approximately 50 minutes, and sometimes more, in
the morning” and, “[f]or various reasons, including
road/weather conditions, [Child had] been late to or missed
school.” Because the long commute was unworkable, the court
recognized that the issue before it was “a much larger issue than
just determining where [Child] goes to school”—it would
require “a change in the parent-time arrangement” as well. To
resolve both the parent-time arrangement and where Child
would attend school in the future, the court set the matter for
trial.
¶6 Before trial, the custody evaluator submitted an updated
report. The evaluator recommended that Father and Mother be
awarded joint legal custody but that Child’s primary physical
residence be with Father. The evaluator made this
recommendation based on two considerations. First, he opined
that Father was “in a more stable physical situation” than
Mother because he owned his house and was “not likely to
move,” whereas Mother “rent[ed] an apartment and ha[d] a
history that raise[d] concern about her ability to maintain a
consistent residence.” Second, he noted that Child had
developed “positive and reciprocal relationship[s] with his [half-
sibling and step-]siblings,” who resided with Father, and Child
would “attend school with them as well as receive guidance and
support from them academically, socially and emotionally.”
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¶7 During trial, Father introduced a letter from Child’s
therapist explaining that Child had been diagnosed with an
adjustment disorder caused by “a stressor in [his] life.” That
letter further stated that Child was experiencing “significant
impairment in social, occupational or other areas of
functioning.”
¶8 Mother testified about Child’s emotional and social
challenges as well. She explained that Child’s school counselor
had been helping him to make and keep friends and to learn
“what’s acceptable social behavior” and “how to control [his]
emotions in school.” Mother testified that although Child was
“struggling with focus and attention in school” as well as
“emotional outbursts,” he had “improved.” She recounted that
Child “struggled with making friends in the beginning,” but was
“finally making more” and by that time had friends at the
school. Because Child “knows the school now” and “knows the
people,” Mother did not “feel that [it would be] right” to “rip
[him] away from [the progress he had made] and have him start
all over in a new school.” Given that Child was “in therapy for
adjustment disorder,” she believed that “[h]aving him switch
schools would just exacerbate that [condition]. He again would
have to adjust to a huge change in his life.”
¶9 Mother also testified about her work schedule. She
described how she had started her own business so her schedule
would be “flexible” for Child, that she “make[s her] own
schedule,” and that the reason she did this was “to be available
to [Child] and his school needs and his extracurricular needs . . .
so that [she could] revolve [her] work around [her] son.” Mother
testified that she and Child have a regular daily routine with a
set schedule for school, homework, extracurricular activities,
playtime, and sleep when Child is residing at her home in
Sandy. Mother asserted that requiring Child to commute to
school from Grantsville “probably has at least something to do
with [Child’s] activity in school,” that “he hates [the commute],”
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and that he is sometimes late to school because of “the weather”
or “accidents on the freeways.”
¶10 After considering the original evaluation, the updated
evaluation, and the other evidence presented at trial, the court
issued its custody order. It found that because of Child’s
“current emotional and behavioral issues which [had] been
diagnosed as an Adjustment Disorder with disturbance of
conduct,” his “psychological and emotional” needs were the
deciding factor and those needs would benefit from residing
primarily with one parent. In support, the court found that Child
“struggles in social settings” and has “behavioral issues,”
“emotional outbursts,” and “difficulty making friends.”
Moreover, “the commute is hard on [Child]” as he was “tired in
school,” had “been late on several occasions,” and had even
“missed school” because of the long commute.
¶11 Having decided that it was in Child’s best interest to
reside primarily with one parent, the court ruled that it was in
Child’s best interest for Mother to be the primary custodial
parent because Mother’s testimony was “credible and
persuasive” regarding the negative impact a change in school
would have on Child. The court found changing schools would
require Child to “start all over—start at a new school, make new
friends and re-adjust,” negatively affecting the progress he had
made establishing friends. Moreover, Mother had the ability to
provide the “maximum amount of parent-time with the
maximum amount of flexibility,” and Mother had “established
routines in the morning, evening, and with regard to homework
and playtime.”
¶12 In keeping with its custody determination, the court also
ruled that, “solely” because of “the 100-mile round-trip
commute,” the parent-time schedule of “every other week for
five days in a row, was not in [Child’s] best interest,” and that
the parent-time schedule would be altered in accordance with
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Utah Code section 30-3-35—Utah’s minimum parent-time
schedule. The court ruled that “on alternating weekends,
[Father] shall have parent-time from the time [Child’s] school is
regularly dismissed on Friday until Sunday at 7 p.m.”
Additionally, Father was awarded a mid-week overnight during
which Father “pick[s] up [Child] after school, and [Mother]
pick[s] up [Child] the next morning.” The court explained, “The
new parent-time schedule is in the best interest of [Child]”
because “it allows [him] to maximize his time with [Father]
while eliminating the constant, back-to-back days of
commuting.”
¶13 After the court filed its custody order, Father filed a
motion for new trial as well as a motion to amend the court’s
findings. The court denied both motions. Father now appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 Father challenges the district court’s custody order on two
grounds. First, he alleges the court failed to articulate sufficient
reasons for rejecting the custody evaluator’s recommendation to
award him primary physical custody and that the court based its
custody determination on an erroneous fact. Second, he alleges
the court failed to make sufficient findings about why it did not
award increased parent-time pursuant to Utah Code section 30-
3-35.1.
¶15 On appeal, we review the district court’s custody and
parent-time determination for abuse of discretion. LeFevre v.
Mackelprang, 2019 UT App 42, ¶ 17, 440 P.3d 874. This discretion
is broad; indeed, as long as the court exercises it “within the
confines of the legal standards we have set, and the facts and
reasons for the decision are set forth fully in appropriate
findings and conclusions, we will not disturb the resulting
award.” Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (cleaned
up). We review the court’s “underlying factual findings for clear
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error.” LeFevre, 2019 UT App 42, ¶ 17. “A finding is clearly
erroneous only if the finding is without adequate evidentiary
support or induced by an erroneous view of the law.” Id.(cleaned up).
ANALYSIS
I. The Rejection of the Evaluator’s Recommendation
¶16 Father first challenges the district court’s decision to
award primary physical custody to Mother. When determining
custody, the court considers many statutorily defined factors,
including “the parent’s demonstrated understanding of,
responsiveness to, and ability to meet the developmental needs
of the child, including the child’s . . . physical needs; . . .
emotional needs; . . . [and] any other factor the court finds
relevant.” Utah Code Ann. § 30-3-10(2) (LexisNexis 2019). 3 But
the factors the court considers are “not on equal footing.” See
Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491.
“Generally, it is within the trial court’s discretion to determine,
based on the facts before it and within the confines set by the
appellate courts, where a particular factor falls within the
spectrum of relative importance and to accord each factor its
appropriate weight.” Id.¶17 Although the district court has broad discretion to make
custody determinations, it “must set forth written findings of
fact and conclusions of law which specify the reasons for its
custody decision.” Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah
1996). The findings “must be sufficiently detailed and include
enough subsidiary facts to disclose the steps by which the
3. We cite the current code because the relevant sections of the
statute are not materially different from those in effect at the
time of trial.
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ultimate conclusion on each factual issue was reached.” K.P.S. v.
E.J.P., 2018 UT App 5, ¶ 27, 414 P.3d 933 (cleaned up). The
district court’s conclusions must demonstrate how the decree
“follows logically from, and is supported by, the evidence,”
Andrus v. Andrus, 2007 UT App 291, ¶ 17, 169 P.3d 754 (cleaned
up), “link[ing] the evidence presented at trial to the child’s best
interest and the ability of each parent to meet the child’s needs”
whenever “custody is contested,” K.P.S., 2018 UT App 5, ¶ 27.
¶18 Father contends that the court failed to “articulate
sufficient reasons as to why it rejected [the custody evaluator’s]
recommendation[]” that Child should primarily reside with
Father. “[A] district court is not bound to accept a custody
evaluator’s recommendation,” but if it rejects such a
“recommendation, the court is expected to articulate some
reason for” doing so. R.B. v. L.B., 2014 UT App 270, ¶ 18, 339
P.3d 137.
¶19 Here, the court sufficiently supported its rejection of the
custody evaluator’s recommendation. The custody evaluator
recommended that the court award primary physical custody of
Child to Father for two reasons: (1) Father was in “a more stable
physical situation” and “not likely to move,” and (2) Child had a
“positive and reciprocal relationship with his siblings and
[would] be able to attend school with them as well as receive
guidance and support from them academically, socially and
emotionally.” The court found the evaluation “very helpful” but
did “not agree with the ultimate recommendation.”
¶20 The court based its rejection of the custody evaluator’s
recommendation on several factors. First, the court disagreed
that Mother’s rental apartment was less stable than Father’s
living situation because both Mother and Father had relocated
multiple times in the last few years and both testified that they
intended to stay in their current homes. Second, although the
court agreed that keeping the siblings together “would be
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beneficial” to Child, the court did not “give this factor quite the
weight” that the custody evaluator did, because Child had never
“lived exclusively with his siblings” and their relationship was
not the same as a relationship “between siblings who have been
reared together prior to the separation between the parents.”
¶21 The court also detailed how physical custody with
Mother would better serve Child’s “psychological and emotional
needs.” It found that Mother had “established routines” with
Child “in the morning, evening, and with regard to homework
and playtime.” She “lived a one[-]child-centered life” and indeed
had “built her life around her son”; whereas, Father’s attention
was divided among several children. Mother also enjoyed
“flexible” self-employment that allowed her to personally
provide care for Child, whereas Father’s work schedule was
“less flexible” and would require surrogate care.
¶22 The court further determined that it was not in Child’s
best interest to change schools, which would be required if
Father were awarded primary physical custody. The court
emphasized the need for “consistency” and “routine” for Child,
as he was exhibiting signs of being “under stress,” “struggle[d]
in social settings,” and had “behavioral issues,” “emotional
outbursts,” and “difficulty making friends.” In light of these
factors, the court determined that “making too many changes all
at once” would not be in Child’s best interest. Most notably, the
court found Mother’s “testimony credible and persuasive
regarding the impact a change of school would have on [Child],
given his current condition and the Adjustment Disorder
diagnosis.” Because Child had made significant progress
“adjusting” to his current school and establishing friendships,
the court found that requiring Child to “start all over—start at a
new school, make new friends and re-adjust”—would “impact
the progress” he had made and would not be in his best interest.
Consequently, granting Father primary physical custody, which
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in turn would require Child to transfer to a school in Grantsville,
was not in Child’s best interest.
¶23 Father contends that the court erred because it rejected
the custody evaluator’s “recommendation solely based on [an]
‘Adjustment Disorder with disturbance of conduct’ diagnosis”
even though “at no[] time was there any testimony as to how
[the diagnosis] affected the Child, and/or how it related to the
Child’s relationship with each parent.” But the court did not rest
its decision solely on the fact that Child had been diagnosed
with adjustment disorder. Instead, it considered evidence that
the disorder was caused by stress, that it manifested as
behavioral and social impairments, and that introducing a
change such as transferring schools would exacerbate these
problems. Specifically, Father introduced a letter from Child’s
therapist explaining that Child had been diagnosed with
adjustment disorder caused by “a stressor in [his] life” and that
he experienced “significant impairment in social, occupational or
other areas of functioning.” Mother also gave extensive
testimony regarding Child’s struggles with “focus,” “emotional
outbursts,” and “making friends,” and she detailed the
improvements he had made in those areas. She further testified
that, in light of Child’s adjustment disorder diagnosis, “having
him switch schools would just exacerbate that” condition and
undo the progress he had made because it would require him to
“start all over.”
¶24 In sum, the evidence presented at trial sufficiently
supports the court’s ruling that Child’s best interests, i.e., his
“psychological, physical, and emotional” needs, were best met
by Mother being awarded primary physical custody,
“outweigh[ing] the factors favoring” a custody award in favor of
Father. And the court’s careful evaluation of that evidence
certainly “articulate[s] some reason” for rejecting the custody
evaluator’s recommendation. See R.B. v. L.B., 2014 UT App 270,
¶ 18, 339 P.3d 137. Thus, the court acted within its discretion in
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rejecting the custody evaluator’s recommendation and awarding
Mother primary physical custody.
II. The Parent-Time Schedule under Utah Code Section 30-3-35
¶25 Father also contends that the district court erred because
it did not adopt the optional increased parent time schedule set
forth under Utah Code section 30-3-35.1 without making
sufficient findings. We disagree.
¶26 “[D]istrict courts are generally afforded broad discretion
to establish parent-time.” Lay v. Lay, 2018 UT App 137, ¶ 16, 427
P.3d 1221 (cleaned up). When parents do not agree to a parent-
time schedule, Utah Code section 30-3-35 prescribes a “default
minimum amount” of “parent-time for the noncustodial parent,”
unless “‘the court determines that Section 30-3-35.1 should
apply’ or a parent can establish ‘that more or less parent-time
should be awarded.’” Id. ¶¶ 5–6 (quoting Utah Code Ann. § 30-
3-34(2) (LexisNexis Supp. 2017)); see also Utah Code Ann. § 30-3-
35(2) (LexisNexis Supp. 2021)). Under that default minimum
parent-time schedule, the noncustodial parent is entitled to time
with the child on “one weekday evening and on alternating
weekends, which include Friday and Saturday overnights.” Lay,
2018 UT App 137, ¶ 6. Thus, the noncustodial parent, at
minimum, enjoys “two overnights in a typical two-week
period.” LeFevre v. Mackelprang, 2019 UT App 42, ¶ 20, 440 P.3d
874.
¶27 The court “may consider” an “optional parent-time
schedule” set forth in Utah Code section 30-3-35.1(1)–(2), (6),
which increases parent-time from two overnights to five
overnights in every two-week period “by extending weekend
overnights by one night, and affording one weeknight overnight
each week.” See Id. ¶ 21; see also Utah Code Ann. § 30-3-35.1(6)
(LexisNexis 2019). The court may adopt the optional parent-time
schedule when either (a) “the parties agree” or (b) “the
noncustodial parent can demonstrate the presence of at least
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four factual circumstances.” LeFevre, 2019 UT App 42, ¶ 22
(cleaned up); see also Utah Code Ann. § 30-3-35.1(2).
¶28 But even if either of these two prerequisites is satisfied,
the district court is not obligated to adopt the increased parent-
time schedule. 4 Under Utah Code section 30-3-35.1, the court “is
authorized, but not required, to consider the optional increased
parent-time schedule as described in the statute.” Lay, 2018 UT
App 137, ¶ 13. The statute “provides legislatively established
standards for the district court to apply in evaluating whether
increased parent-time is warranted, and it eliminates the need
for a district court to independently fashion an increased parent-
time schedule by providing a detailed schedule for the court to
modify or adopt.” Id. ¶ 16. But by providing “the district court
with some guidance and tools for adopting increased parent-
time schedules,” the legislature did not eliminate “the court’s
discretion to apply those tools in the best interest of the child.”
Id. To the contrary, the statutory language plainly indicates that
the adoption of the increased schedule is permissive rather than
mandatory. See id.
¶29 Nonetheless, Father argues that once the court
“considered” section 30-3-35.1, it was obligated to make findings
articulating why it rejected the increased parent-time schedule
suggested by the statute. In setting the parent-time schedule, the
court largely adopted the minimum schedule set forth in section
30-3-35, except that it increased the weekday evening parent-
time to a mid-week overnight. As a result, the only difference
between the increased parent-time schedule under section 30-3-
4. Father contends that he and Mother stipulated “that one
parent should be awarded Primary Custody with the other
parent being awarded parent time pursuant to Utah Code Ann.
30-3-35.1 during the school year.” Mother contests this
characterization of the record.
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35.1 and the schedule actually ordered is an additional weekly
Sunday overnight. Father contends that “the trial court should
have addressed how it was in the best interest for [Child] to be
returned home on Sunday as opposed to Monday morning for
school.”
¶30 But Father misunderstands the statutory scheme. When
parents cannot agree to a parent-time schedule, section 30-3-35
provides a presumptive minimum, but the district court still
retains discretion to award more time than the statute provides.
See Utah Code Ann. § 30-3-34(1)–(2) (“[T]he court may . . .
establish a parent-time schedule” but “the parent-time schedule
as provided in Section[] 30-3-35 . . . shall be considered the
minimum parent-time to which the noncustodial parent and the
child shall be entitled.”). If the court orders more parent-time
than the presumptive minimum, it may “independently fashion
an increased parent-time schedule” under section 30-3-35, or it
may adopt the “detailed schedule” set forth in section 30-3-35.1.
See Lay, 2018 UT App 137, ¶ 16. In any event, in awarding
parent-time, the court is simply required to “enter the reasons
underlying [its] order.” See Utah Code Ann. § 30-3-34(3). The
statute does not require the court to articulate specific reasons
for rejecting all other alternatives, such as an additional Sunday
overnight that would necessitate another long commute to
school every other Monday.
¶31 In keeping with the statutory requirements, the court
entered sufficient findings to support its parent-time award
under section 30-3-35. The court ordered that “[Father] shall
have parent-time pursuant to the guidelines established in Utah
Code Ann. § 30-3-35” and articulated its reasons for customizing
that schedule to allow Father an additional mid-week overnight.
The court explained that it was
interested in maximizing [Father’s] time (along
with his family) with [Child]. Section 30-3-35
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permits a mid-week visit. It is in [Child’s] best
interest to have a mid-week visit at [Father’s]
home. [Child] will benefit from doing homework
with [Father], [his stepmother,] and his siblings.
And, because it is only one day a week, the impact
of the commute will be minimized. The parties can
determine which day works best for them and
[Child].
The court concluded that “[t]he new parent-time schedule is in
the best interest of [Child]—it allows [him] to maximize his time
with [Father] while eliminating the constant, back-to-back days
of commuting.” These findings adequately support the ordered
parent-time schedule.
CONCLUSION
¶32 Custody and parent-time determinations “may frequently
and of necessity require a choice between good and better.”
Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982). The broad discretion
we accord the district court “stems from the reality that in some
cases the court must choose one custodian from two excellent
parents.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). That
is precisely the situation the district court faced here. And
“where analysis reveals that the best interests of the child would
be served equally well with either parent,” we cannot say the
“court has abused its discretion in awarding custody to one
parent over another.” See id. at 1216. Because the district court
sufficiently supported its rejection of the custody evaluator’s
recommendation for primary custody and articulated the
reasons for the parent-time schedule it adopted, we defer to the
court’s sound judgment. Affirmed.
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