(concurring in the result):
Today the Court affirms the trial court’s finding that the change-of-circumstances requirement of Hogge v. Hogge, Utah, 649 P.2d 51 (1982), was satisfied. I agree that this requirement was met; however, I differ with the majority as to the proper basis for affirming this finding.
This Court set a very high standard for reopening custodial orders in Hogge and Becker v. Becker, Utah, 694 P.2d 608 (1984). The majority analyzes this case as though it involves the usual custody dispute, where custody has been awarded to one parent and the other is attempting to reopen the order and change custody, and finds that the evidence presented through affidavits and testimony is sufficient to show a change of circumstances under Hogge and Becker. I disagree. The evidence presented below would not warrant a reopening of a custody order if this were the usual custody case. There is no proof of a change in circumstances sufficiently substantial in its effect on the mother’s parenting ability or on her relationship with the children as to require the conclusion that the benefit to the children from a change of custody will outweigh the certain harm that will follow from such a destabilization of their lives. Shioji v. Shioji, 712 P.2d 197, 1985 (Zimmerman, J., dissenting).
I do find that Hogge and Becker are satisfied under the unique facts of this case, however. The fact that the order under consideration is not one awarding custody to one of the parents, but one providing for joint custody, is of central importance in determining what should be required to justify reopening it. An order awarding custody to one parent fixes that parent as the primary nurturer of the child and the one with whom the child will reside. As I suggested in Shioji, Hogge and Becker require that once such an order is entered, considerations of stability in child placement become of central importance: there should be a very strong bias against reopening the order because children are almost always harmed by a transfer from one parent to the other.
When the reopening of a joint custody order is at issue, however, the stability-of-placement consideration that is central to the strict reopening standards of Hogge and Becker appears to be of minimal importance simply because the order at issue has not fixed one parent as the primary nurturer. To the contrary, a measure of instability is inherent in a joint custody order because it requires that two people, who are not residing together, share custodial rights and responsibilities and work out the logistics of caring for the children.1
Another characteristic of joint custody orders also suggests that they should be more readily opened. A joint custody order is premised on the parents’ ability to work out the details of custody between themselves. If the parents are unable to make this cooperative arrangement work, that alone shows a change of circumstances warranting a reexamination of the original order. In the present case, both parties asserted that joint custody was not working. That would end the inquiry for me. The order must be reopened and custody must be given to one parent or the other. As to the propriety of the award of custody to the father, there was ample evidence to *511support the trial court’s order. For that reason, I concur in the result reached by the majority.
DANIELS, District Judge(Concurring):
As a district judge, I am honored to be invited to participate with the Supreme Court on this case. I hope the members of this Court will not consider it an abuse of that invitation for me to write this concurring opinion, which is necessarily critical of some of the Court’s previous opinions. I believe that the problems with this case did not arise in the trial court; rather, they arose when this Court issued its opinion in the ease of Hogge v. Hogge, Utah, 649 P.2d 51 (1982), and have worsened as that case has been followed and expanded. The procedure mandated by these cases sounds fine in an appellate opinion; unfortunately, it does not work well on the trial level.
The Hogge ease requires that the hearing in a custody modification case be bifurcated so that the evidence of changed circumstances is heard first. Only if the petitioner establishes a substantial change in circumstances will the court proceed with the seond phase of the case, where the entire issue of the best interests of the child is considered.
The problem with the procedure is this: the evidence supporting changed circumstances is almost always the same evidence that is used to establish the best interests of the child. Even when there is additional evidence which bears solely on the best interests question, that evidence is usually so entwined with the changed circumstances evidence that it is almost impossible to sort out. The trial judge is faced with an objection to almost every question. He or she must then try to figure out whether the answer would relate to changed circumstances, best interests, or both. The witness frequently must be recalled to give further testimony in the second phase of the hearing, which causes inconvenience for the witness and expense for the parties.
Admittedly, some trial judges do not follow this cumbersome procedure. Instead, we take all of the evidence and sort out mentally that which relates to changed circumstances and that which relates to best interests. We then make findings on both issues, taking into consideration the important policy of custodial stability, which requires a very high standard to establish a material change in circumstances.
From a review of the record, it is obvious what happened in the trial court in this case. The judge reviewed the custody evaluations and the pleadings. From these he determined the following: (1) both parties had petitioned the court for a change in the joint custody arrangement although for different reasons; (2) Mr. Moody had remarried; (3) Mrs. Moody was planning to remarry, although her future husband was still in the process of divorce; (4) the joint custody situation was not working out well and the children were “showing the signs of too frequent change from one household to another.” This was sufficient for the trial judge to proceed with a hearing on all of the evidence. At the conclusion of the evidence, the judge entered findings and conclusions on both issues: changed circumstances and best interests. In my view, this was not only permissible, it was the only sensible procedure.
. Once the court reopens the order and reaches the question of which of the two parents should be given custody, how the children were cared for under the joint custody arrangement certainly would be a relevant consideration. For example, if the facts show a degree of stability in the children’s actual living arrangements approaching that normally incident to one-parent custody, then the trial court should accord those arrangements a great deal of weight in making its custody decision.