Martinez v. Sanchez-Garcia

2023 UT App 60THE UTAH COURT OF APPEALS
DAISY MARTINEZ
Appellant,
v.
FERNANDO SANCHEZ-GARCIA,
Appellee.
Opinion
No. 20210829-CA
Filed June 2, 2023
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 154100308
Ashley E. Bown, Attorney for Appellant
Wayne K. Caldwell, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.
HARRIS, Judge:
¶1 When Daisy Martinez and Fernando Sanchez-Garcia
divorced, they both lived in Cache County and, under the terms
of their stipulated divorce decree, Martinez was the primary
physical custodian of and caregiver for their children. Some two
years later, Martinez moved with the children to Layton, about
sixty miles away. At that point, Sanchez-Garcia asked for a
modification of the custody arrangement, one that would give
him primary physical custody of the children in Cache County.
After a trial, the court ruled in favor of Sanchez-Garcia, modifying
the custody order to make him the primary physical custodian,
unless Martinez were to move back to Cache County. Martinez
now appeals the court’s modification order, asserting that the
court failed to make a finding that circumstances had materially
Martinez v. Sanchez-Garcia
and substantially changed, and that the court failed to take into
account her status, up to that point, as primary caregiver. We find
merit in Martinez’s arguments, and therefore vacate the court’s
modification order and remand for further proceedings.
BACKGROUND
¶2 After five years of marriage, Martinez and Sanchez-Garcia
divorced in 2017. Their stipulated divorce decree provided that
the parties would share “joint legal custody and joint physical
custody” of their two children, and that Martinez would have
primary physical custody, with Sanchez-Garcia awarded parent-
time that was something less than 50/50. The decree required the
parties to “inform each other of any change of address . . . at least
thirty (30) days prior to the change, if practicable,” and stated that,
if “either party relocate[s] to a residence more than 150 miles
away,” then “the relocating party shall provide notice pursuant
to” Utah’s relocation statute. See Utah Code § 30-3-37.
¶3 Some two years later, Martinez notified Sanchez-Garcia
that she planned to move to Colorado with the children that
summer so that she could attend nursing school. She later
incorporated her relocation request into a petition to modify the
divorce decree, asking the court to give her sole physical custody
of the children as necessary to facilitate her move. Sanchez-Garcia
responded by filing a counter-petition to modify, asking the court
to change the custody provisions of the decree to give him sole
physical custody of the children in the event Martinez were to
relocate to Colorado.
¶4 After a hearing, a court commissioner determined that
relocation to Colorado was not in the best interest of the children,
and therefore recommended that Martinez’s request for
relocation with the children be denied, and that, if Martinez were
to relocate to Colorado, primary physical custody should shift to
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Sanchez-Garcia. Martinez objected to the commissioner’s
recommendation, and asked the district court to appoint a
custody evaluator, which the court eventually did.
¶5 After completing his assessment, the custody evaluator
announced his recommendation: if Martinez relocated to
Colorado, Sanchez-Garcia should be granted sole physical
custody of the children, with Martinez receiving parent-time
pursuant to Utah’s relocation statute, see Utah Code § 30-3-37, but
if Martinez remained in Cache County, the custody arrangement
should be “50/50 parent time.”
¶6 Soon after receiving the custody evaluator’s
recommendation, Martinez decided not to move to Colorado, and
effectively withdrew her petition to modify regarding that
potential move (although she did continue to press for an income-
related modification of child support obligations). She did not,
however, remain in Cache County; instead, she relocated with the
children to Layton, Utah, a city located some sixty miles from her
previous residence, and she did so without providing any
advance notice to Sanchez-Garcia. He objected to Martinez’s
move to Layton, and eventually amended his counter-petition to
reflect this new development, asking the court to modify the
custody order anyway, even though Martinez was not moving to
Colorado, because she had relocated to Layton.
¶7 The court held a one-day bench trial to consider Sanchez-
Garcia’s counter-petition regarding Martinez’s relocation to
Layton, as well as Martinez’s petition regarding amendment of
the parties’ child support obligations. The court heard testimony
from both parties, as well as from the custody evaluator. In his
testimony, Sanchez-Garcia described how his parent-time initially
consisted of daily visits but no overnights, but gradually changed
to a fairly consistent schedule of one weekday and alternate
weekends. He noted that he has “to kind of share [his] parent
time” with his extended family, who are very involved in the
20210829-CA 3 2023 UT App 60Martinez v. Sanchez-Garcia
children’s lives. He expressed frustration that his parent-time was
sometimes “covered up with sports and stuff like that.” And he
explained that Martinez’s extended family was also very involved
in the children’s lives, noting that “70 percent of the time” he was
instructed to drop the children off, after parent-time, not at
Martinez’s house but at the residence of one of her extended
family members. When asked what his preferred parent-time
would be, he answered “50/50” like “what [the custody evaluator]
said.” But he acknowledged, on cross-examination, that he had
never exercised his allotted four weeks of summer parent-time.
And when asked if Martinez had offered to keep the children on
their Cache County soccer teams, even after her move to Layton,
Sanchez-Garcia confirmed that she had but said he declined the
offer because his “work schedule was getting kind of crazy” and
he would not be able to get the children to practice.
¶8 In her testimony, Martinez stated that the children were
happy and doing well in Layton, and that her move to Layton had
not changed the amount of parent-time Sanchez-Garcia received.
To cut down on travel, Martinez had offered Sanchez-Garcia
parent-time every Friday instead of his midweek day,1 and
although he mentioned that he wanted a different midweek day,
he never specified which one. When asked why she had wanted
to move to Colorado, Martinez explained that she had applied to
nursing school there because she had found it was easier to gain
admission there than to the nursing programs in Cache County.
She stated that, after deciding not to move to Colorado, she
moved to Layton instead because there were “more school
options” there, and because she had remarried and her new
husband “works closer to that area” and would not have to
commute “through the canyon in the wintertime.” Martinez also
1. At the time, the children’s school was asynchronous on Fridays,
due to continuing COVID-19 restrictions.
20210829-CA 4 2023 UT App 60Martinez v. Sanchez-Garcia
explained that her remarriage had placed her in a better financial
situation than when the custody evaluation occurred.
¶9 The custody evaluator testified that “the children are very
well established with both parents” and recommended “50/50
parent time” if the parents lived near each other. His
recommendation was largely influenced by the children’s “very
well established support network” in Cache County, but he
admitted that his recommendations about the children not
moving were specific to a move to Colorado—more than five
hundred miles away—and not to Layton—some sixty miles away.
While acknowledging that he would be “speculating,” the
custody evaluator “hypothesize[d]” that, if he were asked to
assess the propriety of Martinez’s move to Layton (rather than
Colorado), he “would entertain and evaluate the same concerns
of removing the children from a very strong and well supported
network.” But he conceded, on cross-examination, that he had not
been asked to assess the propriety of a move to Layton, and that
he did not “have a basis to form an opinion” about that specific
move, especially since he had “not evaluated the children or
interact[ed] with them for more than a year”; he testified that, in
order to form an opinion about that particular relocation, he
“would want to observe the home arrangements,” “understand
the arrangements for care [and] how frequently surrogate care is
arranged and by whom,” as well as “understand peer
relationships, [and] the continuity of contact with extended family
and cousins” in Cache County.
¶10 At the conclusion of the trial, the court issued a ruling from
the bench granting Sanchez-Garcia’s petition to modify,
“consistent with [the custody evaluator’s] recommendations,”
and awarded Sanchez-Garcia primary physical custody of the
children so long as Martinez remained in Layton. However, the
court ruled that, in the event Martinez moved back to Cache
County, custody should be shared equally. Nowhere in its oral
ruling did the court discuss whether there had been a substantial
20210829-CA 5 2023 UT App 60Martinez v. Sanchez-Garcia
and material change of circumstances that would justify
reexamining the custody provisions of the decree.
¶11 About a month later, the court issued a written order
memorializing its ruling. As in the oral ruling, the court did not
discuss whether there had been a substantial and material change
in circumstances, and made no findings or conclusions in that
regard. It stated that it had “considered the evidence in light of
the factors set forth in Utah Code [sections] 30-3-10 and 30-3-10.2,”
but it discussed only three of those numerous factors in its ruling.
It found that “both parents are well and able parents to provide
for the children,” but that their “co-parenting skills [had] been
compromised by the inability to communicate appropriately.” It
noted that the custody evaluator’s recommendation—that the
children not move to Colorado—“was based in large part on the
fact that there is a family community here in Cache County” on
both sides, and that the children’s “interactions” with extended
family members “have been an important part of and support for
the children’s lives” and that those interactions “significantly
affect[] the children’s best interests.” The court also found that
Martinez had “failed with communication,” specifically finding
“problematic” her decision not to notify Sanchez-Garcia prior to
her relocation to Layton. The court noted, nonspecifically, that it
had “relie[d] on the expertise of the custody evaluator in making
its orders,” but did not discuss the fact that the evaluator’s
recommendations had been made with regard to a potential move
to Colorado, and that the evaluator had expressly made no
recommendation regarding a move to Layton. And the court did
not discuss the fact that Martinez had, up until the court’s ruling,
been the children’s primary caregiver for their entire lives.
¶12 Based on these findings, the court concluded that it was in
the children’s best interest to be “brought back to reside in Cache
County.” The court specified that, in the event that Martinez came
back to Cache County with them, “the parties will have parent-
time on a one week on, one week off alternating schedule,” but if
20210829-CA 6 2023 UT App 60Martinez v. Sanchez-Garcia
Martinez remained in Layton, she would enjoy only statutory
minimum parent-time.2
ISSUES AND STANDARDS OF REVIEW
¶13 Martinez now appeals from the district court’s ruling on
Sanchez-Garcia’s counter-petition to modify the parties’ divorce
decree, and she raises two issues that require our consideration.
First, she contends that the court failed to make any findings
regarding whether a substantial and material change in
circumstances had occurred. This is a matter we review without
deference, because a district “court must make findings on all
material issues” when ruling on a modification petition, and a
court’s “failure to delineate what circumstances have changed
and why these changes support the modification . . . constitutes
reversible error unless the facts in the record are clear,
uncontroverted and only support the judgment.” Diener v. Diener,
2004 UT App 314, ¶ 7, 98 P.3d 1178 (quotation simplified), cert.
denied, 106 P.3d 743 (Utah 2005).
¶14 Second, Martinez challenges the court’s custody
determination, asserting that the court failed to consider many of
the relevant factors, including the fact that she had been the
children’s primary caregiver. “We review the district court’s
custody and parent-time determination for abuse of discretion.”
Twitchell v. Twitchell, 2022 UT App 49, ¶ 17, 509 P.3d 806(quotation simplified).
2. In connection with Martinez’s request to amend child support,
the court also made findings regarding the parties’ respective
incomes, and on that basis (as well as the modified custody
orders) modified the parties’ child support obligations. The
court’s findings regarding the parties’ respective incomes are not
at issue in this appeal.
20210829-CA 7 2023 UT App 60Martinez v. Sanchez-Garcia
ANALYSIS
¶15 “Under Utah law, petitions to modify custody orders are
governed by a two-part test: ‘A court order modifying . . . an
existing joint legal custody or joint physical custody order shall
contain written findings that: (i) a material and substantial change
of circumstance has occurred; and (ii) a modification . . . would be
an improvement for and in the best interest of the child.’” Peeples
v. Peeples, 2019 UT App 207, ¶ 13, 456 P.3d 1159 (emphasis added)
(quoting Utah Code § 30-3-10.4(2)(b)). Martinez raises a challenge
with regard to each part of this two-part test.
¶16 First, she asserts that the district court did not make any
findings—written or oral—regarding whether “changes in the
circumstances upon which the previous award was based” have
occurred that “are sufficiently substantial and material to justify
reopening the question of custody.” Id. ¶ 15 (quotation
simplified). Martinez’s assertion is correct: we have examined the
court’s oral and written rulings, and we are unable to find any
discussion of whether a change in circumstances had occurred.3
This was error; a finding of changed circumstances is a “threshold
requirement for modifying a divorce decree,” Larson v. Larson, 888
3. It may not be sufficient for a court to make an oral—but not a
written—ruling in this regard, because the governing statute
requires courts to make “written findings” on both parts of the
modification test. See Utah Code § 30-3-10.4(2)(b); see also
Hutchison v. Hutchison, 649 P.2d 38, 42 (Utah 1982) (stating that a
requirement of written findings allows an appellate court “to be
in a position to review the propriety of the trial court’s order,” and
this “requirement of written findings applies with even greater
force to orders awarding or modifying the custody of a child”
(quotation simplified)). But in this case, we need not consider
whether an oral finding, standing alone, would be sufficient,
because the court made neither an oral nor a written finding
regarding changed circumstances.
20210829-CA 8 2023 UT App 60Martinez v. Sanchez-Garcia
P.2d 719, 722 n.1 (Utah Ct. App. 1994), and “only if a substantial
change of circumstances is found should the district court
consider whether a change of custody is appropriate,” Peeples,
2019 UT App 207, ¶ 13 (quotation simplified); see also Doyle v.
Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even an overwhelming
case for the best interest of the child could not compensate for a
lack of proof of a change in circumstances.”).
¶17 Sanchez-Garcia acknowledges the lack of findings
regarding changed circumstances, but nevertheless defends the
court’s ruling on two bases, neither of which we find persuasive.
First, he asserts that it is “clear and uncontroverted” in the record
that a substantial and material change of circumstances occurred,
and he points to Martinez’s “sudden relocation to Layton,” which
necessitated a change in schools for the children as well as a
distancing from their “extensive support network” in Cache
County. We recognize that Martinez’s move to Layton changed
the landscape, but it is not at all obvious to us that this move
resulted in the sort of substantial and material change that would
justify a second look at the custody arrangement. Martinez’s
move was well inside the 150-mile threshold that triggers the
relocation statute. See Utah Code § 30-3-37(1). Moves within that
threshold, even if they involve the crossing of a county line, do
not, by themselves, necessarily indicate that a substantial and
material change has taken place. Martinez presented evidence—
that the court did not discuss—that the children were doing well
in Layton and that her move to Layton did not result in any loss
of parent-time for Sanchez-Garcia; that is, Sanchez-Garcia was
enjoying just as much parent-time after Martinez’s move to
Layton as he had been before. Cf. Erickson v. Erickson, 2018 UT App
184, ¶ 18, 437 P.3d 370 (holding, on the facts of that case, that a
“change in the pick-up times without a change in the number of
overnights” does not amount to a material and substantial change
in circumstances “that warrants a change in custody”). And the
fact that the children changed schools is not necessarily something
20210829-CA 9 2023 UT App 60Martinez v. Sanchez-Garcia
that constitutes a substantial change in circumstances; a
hypothetical five-mile move across town within Cache County
may also have necessitated a change in schools, yet it is unlikely
that such a move would, in this context, have been considered a
substantial and material change in circumstances. And evidence
was presented indicating that the children, even after the move to
Layton, continued to enjoy significant contact with extended
family on both sides. We do not foreclose the possibility that a
court, under circumstances similar to these, could make a
supported finding that things had changed enough to justify a
second look at the custody order. But such a conclusion is far from
obvious, and we expect a district court to engage with this issue
and explain why it believes that to be the case. On this record, we
cannot excuse the lack of findings on the basis that a substantial
and material change is clear from the facts.
¶18 Next, Sanchez-Garcia claims that Martinez invited any
error in this regard, because she filed her own petition to modify
and therein asserted that there had been a substantial and material
change in circumstances. But her petition was filed with regard to
a potential move to Colorado, and was in that regard effectively
withdrawn prior to trial.4 A move to Colorado—far more than 150
miles from Cache County—would unquestionably be a
substantial and material change in circumstances. But it does not
follow, from her unremarkable assertion that a move to Colorado
would be a substantial and material change, that she was also
admitting that a move to Layton would likewise qualify as such.
Indeed, in her answer to Sanchez-Garcia’s amended counter-
petition to modify, Martinez expressly denied Sanchez-Garcia’s
allegation that her move to Layton constituted a substantial and
material change in circumstances. Martinez therefore did not
4. Her only affirmative issue remaining for trial was an assertion
that the parties’ incomes had changed significantly enough to
justify amendment to the amount of child support ordered.
20210829-CA 10 2023 UT App 60Martinez v. Sanchez-Garcia
invite the court’s error in failing to engage with the first part of
the modification test.
¶19 Thus, we find merit in Martinez’s first challenge, and
conclude that, on this issue alone, we must vacate the district
court’s modified decree and remand for further proceedings so
that the court can have an opportunity to engage with this issue
and explain why Martinez’s move to Layton constituted the sort
of substantial and material change that necessitates a reopening
of the custody provisions of the decree.5
¶20 We recognize that should the court on remand determine
that a substantial change of circumstances has not occurred, no
further analysis will be required. However, should the district
court conclude that a substantial change in circumstances has
occurred, the court’s analysis regarding custody will also require
more thorough treatment; indeed, were the court’s analysis
regarding custody the only matter at issue, we would vacate and
remand that determination as well. Therefore, we offer the
following guidance should the issue arise following remand. See
5. In connection with this inquiry, the court may need to concern
itself with the question of whether the decree subject to
modification was the product of litigation or stipulation or some
combination of the two. In some cases, “a lesser showing of
changed circumstances may support modifying a stipulated
award than would be required to modify an adjudicated award.”
See Peeples v. Peeples, 2019 UT App 207, ¶ 15, 456 P.3d 1159(quotation simplified). But the “adjudicated/stipulated
dichotomy” is not “entirely binary,” and “in assessing how much
‘lesser’ a showing might be required to satisfy the change-in-
circumstances requirement, . . . courts should examine the origin
of the order in question and analyze the extent to which the
order—even if stipulated—reflects the result of robustly contested
litigation aimed at ascertaining the best interest of the child.” See
id. ¶ 17 (quotation simplified).
20210829-CA 11 2023 UT App 60Martinez v. Sanchez-Garcia
State v. Garcia-Lorenzo, 2022 UT App 101, ¶ 58, 517 P.3d 424(electing to consider additional raised and briefed issues, even
though not necessary to the outcome of the appeal, “in an effort
to offer guidance that might be useful on remand, where these
issues are likely to arise again” (quotation simplified)), cert.
granted, 525 P.3d 1263 (Utah 2022).
¶21 After a court has determined that a substantial and
material change in circumstances has occurred, it must then
proceed to analyze whether “a modification . . . would be an
improvement for and in the best interest of the child.” See Utah
Code § 30-3-10.4(2)(b). In so doing, the court “shall, in addition to
other factors the court considers relevant, consider the factors
outlined in Section 30-3-10 and Subsection 30-3-10.2(2).” Id. § 30-
3-10.4(2)(a) (emphasis added). Section 30-3-10 lists seventeen
factors for consideration, before authorizing courts to consider
“any other factor the court finds relevant.” Id. § 30-3-10(2). And
section 30-3-10.2(2)—applicable when the court is considering
joint custody—sets forth another eight specific factors for
consideration, before also authorizing consideration of “any other
factor the court finds relevant.” Id. § 30-3-10.2(2). Thus, courts in
this situation are statutorily required to “consider,” at least in
some form, twenty-five enumerated factors, as well as “any other”
relevant factor.
¶22 Of course, not all of these factors “are on equal footing,”
and a district court “generally has 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.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 20, 509 P.3d 806(quotation simplified). Some factors might not be relevant at all to
20210829-CA 12 2023 UT App 60Martinez v. Sanchez-Garcia
the family’s situation, and others might be only tangentially
relevant or will weigh equally in favor of both parents.6
¶23 Other factors, however, are of particular importance when
considering a change in custody. For instance, “[a]t the critically
important end of the spectrum, when the child is thriving, happy,
and well-adjusted, lies continuity of placement.” Hudema v.
Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491; see also Larson v.
Larson, 888 P.2d 719, 722–23 (Utah Ct. App. 1994) (citing eight
earlier Utah cases, and stating that “a factor of considerable
importance in determining the best interest of children is the
maintenance of continuity in their lives, and removing children
from their existing custodial placement undercuts that policy”).
Stated another way, when a court is “considering competing
claims to custody between fit parents under the ‘best interests of
the child’ standard, considerable weight should be given to which
parent has been the child’s primary caregiver,” Davis v. Davis, 749
P.2d 647, 648 (Utah 1988), and “[e]xisting arrangements in which
the child has thrived should be disturbed only if the court finds
compelling circumstances,” Hudema, 1999 UT App 290, ¶ 26. The
importance of this factor is further highlighted by the fact that
applicable statutes mention it twice: not only does section 30-3-10
list it as one of the seventeen general custody factors, see Utah
Code § 30-3-10(2)(m) (listing as a factor “who has been the
primary caretaker of the child”), but the modification statute
specifies that, in considering whether to modify a custody order,
6. Even with factors not relevant to the situation or factors that do
not move the needle one way or the other, a court is well-served
to at least mention those factors in its ruling and briefly indicate
that it deems them irrelevant or of equal weight for each party. By
mentioning them, even if only to say that they are irrelevant, a
court ensures that the parties—and, significantly, a reviewing
court—will be able to tell that the court at least “consider[ed]”
them. See Utah Code § 30-3-10.4(2)(a).
20210829-CA 13 2023 UT App 60Martinez v. Sanchez-Garcia
the court “shall give substantial weight to the existing . . . joint
physical custody order when the child is thriving, happy, and
well-adjusted,” id. § 30-3-10.4(2)(c).
¶24 In its custody analysis, the district court discussed only
three of the twenty-five applicable statutory factors. The court
began by finding that “both parents are well and able parents to
provide for the children,” an apparent allusion to one of the
general custody factors. See id. § 30-3-10(2)(c) (listing as a factor
each “parent’s capacity and willingness to function as a parent”).
It then discussed, at some length, the important relationships the
children had with extended family members on both sides in
Cache County. See id. § 30-3-10(2)(l) (listing as a factor a child’s
“interaction and relationship with . . . extended family
members”). The court also discussed Martinez’s failure to notify
Sanchez-Garcia of her move to Layton, and viewed that as a
failure of communication. See id. § 30-3-10.2(2)(c)(i) (listing as a
factor each parent’s “co-parenting skills, including” the parent’s
“ability to appropriately communicate with the other parent”).
But that was the sum total of the court’s analysis; significantly, the
court did not undertake any discussion of “who has been the
primary caretaker of the child,” see id. § 30-3-10(2)(m), a factor that
is “[a]t the critically important end of the spectrum,” Hudema, 1999
UT App 290, ¶ 26, and therefore entitled to “considerable weight,”
Davis, 749 P.2d at 648; see also Utah Code § 30-3-10.4(2)(c)
(requiring courts considering modification to give “substantial
weight” to existing joint custody arrangements in which “the
child is thriving, happy, and well-adjusted”).
¶25 At trial in this case, Martinez emphasized the “primary
caregiver” factor, and put on evidence and made argument about
that factor, asserting that she had always been the primary
caregiver and that the children were doing well in her care, the
move to Layton notwithstanding. Indeed, the custody evaluator
testified that, in his view, “the children are very well established
with both parents.” We acknowledge that “[d]etermining which
20210829-CA 14 2023 UT App 60Martinez v. Sanchez-Garcia
factors the court must address in a given case, and to what degree,
presents a tricky task,” and that “courts are not required to render
a global accounting of all evidence presented or to discuss all
aspects of a case that might support a contrary ruling.” See
Twitchell, 2022 UT App 49, ¶ 21 (quotation simplified). But “where
significant evidence concerning a particular factor is presented to
the district court,” especially where that factor is a critically
important one, “findings that omit all discussion of that evidence”
and of that factor “must be deemed inadequate.” Id.¶26 Again, we do not foreclose the possibility that a change of
custody could be warranted here after a more fulsome analysis of
the relevant custody factors, and our opinion should not be read
as placing a thumb on the scale in either direction. But a more
complete analysis is required here, in which the court should—as
required by statute, see Utah Code § 30-3-10.4(2)(a)—“consider”
the relevant factors, at least in some form, especially the ones the
parties emphasize. In particular, given the court’s heavy reliance
on the importance of the children’s relationships with extended
family in Cache County, the court should engage with our
previous case law holding that, “[w]hile the close proximity of . . .
extended family is an appropriate factor for the court to consider,
this, by itself, is insufficient to disturb a previously determined
custody arrangement in which the children are happy and well-
adjusted.” Larson, 888 P.2d at 726.
CONCLUSION
¶27 We find merit in Martinez’s two arguments, and therefore
vacate the court’s modification order and remand for further
proceedings in which the court should analyze at least the first of
these issues, and possibly the second, anew. In so doing, the court
should expressly consider whether a substantial and material
change of circumstances has occurred and, if it concludes that
such a change has in fact occurred, the court should then consider,
20210829-CA 15 2023 UT App 60Martinez v. Sanchez-Garcia
at least in some form, all the statutory factors relevant to custody
modification, including the “primary caregiver” factor.
¶28 We also note that the court’s renewed analysis, on remand,
should be conducted “in present-tense fashion, as of the date of
the hearing or trial, and should not only take into account the
items discussed in this opinion but, in addition, should take into
account, in some form, any material developments with regard to
[the children] that have occurred since the last trial,” see In re
J.J.W., 2022 UT App 116, ¶ 38, 520 P.3d 38, including (if applicable)
whether Martinez has since moved back to Cache County.
20210829-CA 16 2023 UT App 60