Kramer v. Kramer

STEWART, Associate Chief Justice

(concurring in the result):

In Hogge v. Hogge, 649 P.2d 51 (Utah 1982), we adopted the two-step standard that must be met for a trial court to change the custody of a child. It is a useful standard if applied with sensitivity to the interests involved.

Initial custody awards must be based on the best interests of the children. Utah Code Ann. § 30-3-10 (1984). Custody changes must also be made on the same basis, § 30-3-5; Hogge, 649 P.2d 51, 55 (construing § 30-3-5), but a judge in a change-of-custody proceeding must necessarily take into account, in determining the best interests of the child, the proposition that a child should not be uprooted from an established, well-functioning relationship, except for strong and good reasons. Thus, Hogge implements § 30-3-5.

The purpose of the changed circumstances requirement is twofold. First, it prevents an unnecessary drain on judicial resources by repetitive litigation of the same issue when the result would not be altered. Second, and more important, the requirement is intended to ensure sufficient stability in children’s lives to enable them to develop relationships and a sense of familiarity with their surroundings that enhance their sense of security and self-identity, enabling them to find appropriate role models after which to pattern their lives and to develop the ability to give and receive love, a necessary requirement for achieving full potential as human beings.

No good, however, can come from preserving stability in a parent-child relationship that is destructive, especially when another parent might have a positive influence on the child. The nature of the parent-child relationship may never be discovered by the trial judge if he or she rigidly limits a hearing for a change in custody to determining whether there are changed circumstances, without any regard for how well the child is doing under the established custody relationship. Focusing only on the alleged changed circumstances of one or the other of the parents may result in great harm to a child. That does not mean that a change of custody should be made when it is shown that one parent is marginally better than another, but it does mean that a trial judge should not focus exclusively on factors apart from the best interests of the child and ignore all evi*629dence pertaining to the child’s welfare in a hearing on changed circumstances.

Indeed, in my view, the Hogge analysis does not necessarily preclude a trial judge, when determining whether there are changed circumstances, from considering evidence concerning the child’s best interest. Judge Daniels said as much in his perceptive concurring opinion in Moody v. Moody, 715 P.2d 507 (Utah 1985).

I fear, however, that this Court’s strong emphasis on stability is reaching the point where it has been inappropriately severed from the underlying reason that supports the very principle of stability itself, i.e., the need to ensure that custody awards are in the best interests of the children involved.

I agree that the change of circumstances of the noncustodial parent in this case is not dispositive. I concur with what the trial court did because it did not blindfold itself to the circumstances in which the child was being reared.

I also concur in the observations made by Justice Howe in his concurring opinion.