(concurring in the result):
I concur in the result, but write to express my concern that we not adopt a rule which is too rigid in permitting trial judges to focus only on changes in circumstances of the custodial parent. While I agree that many times this rule will serve the best interests of the child, there are times when it may work an opposite result. The majority cites and discusses the facts of Hogge v. Hogge, 649 P.2d 51 (Utah 1982), where we properly focused on changes in the circumstances of the noncustodial parent, reasoning that her deficiencies were only temporary and had been corrected. There are other circumstances, as well, where the child’s best interests would be served by looking at a change of circumstances of the noncustodial parent. For example, sometimes custody contests result in the court’s finding that both parents lack in parenting ability and that both of them are only marginally fit and proper. The court is given a hard choice and picks “the lesser of two evils.” Later, the circumstances of the noncustodial parent improve. He or she may remarry and enjoy a stable relationship. Bad personal habits may be overcome and financial conditions improved. A “turnaround” may be made in his or her life. In such an instance, a trial court should not turn a deaf ear to these changes and allow the child to remain in a home where the custodial parent remained marginal.
I have somewhat of the same concern in cases where a divorce decree and custody of a child is obtained by default. In such instances, there is no determination made by the court as to which parent would be superior in raising the child. Too rigid an application of the rule advocated by the majority would forever lock a child into the custody of one parent or the other where there has been no determination on the merits of parenting ability of either parent and custody has been awarded only because of the default of one parent in failing to oppose the complaint of the other. A child should not be subjected to spending the rest of his or her minority in an inferior environment because of the inaction of one parent at the time custody is awarded. Many people at the time of divorce are at a low ebb in their lives. Finances are strained, and emotions run high. Many are so discouraged that they seek the easy way out. Rules on custody should not be adopted which are so inflexible that they do not make allowance for these unfortunate realities.
The majority writes: “No matter how well intentioned, changes in custody can do more harm than good.” That statement may be true much of the time, but there are examples which I have outlined where the opposite is true. The best interests of the child should never be lost sight of, and rules on change in custody should not be so rigid that this overarching principle is not followed.
I also concur in Justice Stewart’s concurring opinion.
HALL, C.J., concurs in the concurring opinion of HOWE, J.