Modifying Parent-Time in Utah After Duffin v. Duffin: Changed Circumstances Are Only the Beginning

By Jeff D. Rifleman, Rifleman Law & Mediation

Moving closer to your children, improving communication with the other parent, or becoming more available may support a request to modify parent-time in Utah. But those facts do not automatically prove that the court should change an existing schedule. The parent asking for modification must connect the changed circumstances to a proposed schedule that will actually improve the children’s lives and serve their best interests.

The Utah Court of Appeals emphasized that distinction in Duffin v. Duffin, 2025 UT App 136. The father in Duffin proved changes sufficient for the district court to reconsider the existing arrangement. He nevertheless lost because the children were thriving, the requested changes were not shown to improve their circumstances, and the practical problems underlying the original parent-time decision had not been overcome.

For parents considering a Utah divorce decree modification, Duffin is an important reminder: proving that life has changed opens the door to review, but it does not establish what should be on the other side of that door.

The Current Utah Statutory Standard for Modifying Custody or Parent-Time

Utah Code section 81-9-208 gives Utah courts continuing jurisdiction to modify custody and parent-time orders. The current statute distinguishes between the two:

To modify custody, the statute requires a substantial and material change in circumstances since entry of the order.
To modify parent-time, the statute requires a change in circumstances since entry of the order.

See Utah Code § 81-9-208(1). That custody-versus-parent-time distinction is also reflected in Utah appellate decisions. See Blocker v. Blocker, 2019 UT App 82, ¶ 12, 444 P.3d 541; Erickson v. Erickson, 2018 UT App 184, ¶ 16, 437 P.3d 370; Jones v. Jones, 2016 UT App 94, ¶ 14, 374 P.3d 45. A request that changes only the timing or structure of parent-time may require a lesser threshold showing than a request that changes legal or physical custody. The label used in the petition, however, does not control. A court will examine what the requested order would actually do.

When modification would alter or terminate an existing joint legal or joint physical custody order, section 81-9-208 requires findings that a substantial and material change has occurred and that the modification would be both an improvement for and in the best interest of the child. The court must consider the statutory factors in Utah Code § 81-9-204 and, when joint custody is involved, Utah Code § 81-9-205. The court must also give substantial weight to the existing joint-custody order when the child is thriving, happy, and well-adjusted. Utah Code § 81-9-208(4).

Duffin applied the version of section 81-9-208 governing the proceedings in that case and involved a request for equal parent-time within an existing joint-custody structure. Its central lesson remains important under the current statute: even where the required change in circumstances is established, the requested schedule must still be justified by the children’s best interests and, where applicable, the statutory improvement requirement.

What Does “Improvement” Mean?

“Improvement” requires a comparison. The court is not simply deciding whether the requesting parent is loving, capable, or deserving of additional time. It compares the existing arrangement with the proposed arrangement from the child’s perspective. The evidence should explain how the requested change would improve stability, developmental support, school routines, the child’s relationship with each parent, transportation, decision-making, or another need important to that particular child.

A proposal is not necessarily an improvement merely because it gives both parents equal time, reduces one parent’s childcare costs, or seems more fair to an adult. In Duffin, the district court found no evidence that a parent-time change was needed to correct a problem affecting the children. That absence mattered.

What Does “Best Interest of the Child” Mean?

Best interest is a child-focused analysis, not a referendum on which parent is the better person. Section 81-9-204 identifies factors that may include the child’s physical and psychological needs; each parent’s demonstrated ability to meet those needs; the strength of the child’s relationship with each parent; the parents’ co-parenting skills; their willingness to encourage the child’s relationship with the other parent; prior caregiving; stability; the child’s adjustment to home, school, and community; and other facts affecting the child. In a joint-custody analysis, section 81-9-205 also addresses matters such as the parents’ ability to communicate and cooperate.

No single fact automatically controls every case. The district court has discretion to decide which factors carry the greatest weight under the evidence before it. Duffin, 2025 UT App 136, ¶ 22 (citing Twitchell v. Twitchell, 2022 UT App 49, ¶ 20, 509 P.3d 806).

What Happened in Duffin v. Duffin?

The Original Divorce Trial and Parent-Time Order

James and Brandy Duffin married in 2015 and had two children. Their older son had autism spectrum disorder and special needs. James filed for divorce in 2018 and requested equal parent-time. The custody and parent-time issues were tried to the district court in March 2020; they were not merely accepted as an unexamined private stipulation.

The court awarded joint legal custody, designated Brandy as the primary physical custodian, and gave her final decision-making authority if the parents could not agree. James received five overnights during each two-week period under what is now Utah Code § 81-9-303—more than the minimum schedule, but less than equal parent-time. The decree provided a right of first refusal only when overnight care was needed.

The court found both parents involved and bonded with the children. But it also found that routine and fewer transitions were especially important for the older child, Brandy had been more involved in arranging his therapy, and James lived approximately forty minutes away. The court therefore rejected equal parent-time after adjudicating the issue under the facts then existing.

What the Father Asked the Court to Modify

Approximately five months after entry of the decree, James petitioned to modify. He had moved to within four miles of Brandy and closer to the children’s school. He again requested equal parent-time.

He later amended his petition after Brandy obtained full-time employment and enrolled the children in full-time daycare. James asked the court to expand the overnight right of first refusal so that either parent would have the opportunity to care for the children whenever the other parent would be unavailable for more than four hours. He also moved to enforce the decree, arguing that daycare enrollment was a joint legal-custody decision Brandy should have discussed with him.

What the District Court Found After the Modification Trial

Following a two-day trial in May 2023, the district court found that James’s move closer to the children and the parents’ less hostile communication together constituted a material change sufficient to revisit custody and parent-time.

That finding did not end the analysis. The court found:

The children were thriving under the existing arrangement.
Both parents were actively involved in school conferences and therapy.
The parents’ communication had improved but was still poor, and James was sometimes slow to respond or did not respond.
The original findings supporting the 2020 custody and parent-time decision otherwise remained unchanged.
There was no evidence that changing parent-time would resolve the younger child’s tantrums or correct another problem affecting the children.

The court concluded that maintaining the status quo was in the children’s best interests. Although the court stated that a 50/50 schedule requires mutual respect, flexibility, and frequent communication, it did not treat communication as the sole factor. The children’s success under the existing schedule was the court’s “biggest factor.”

The court also denied the expanded right of first refusal. It found that requiring repeated coordination about daily care would create uncertainty for the children and make dependable daycare arrangements difficult. Finally, it held that selecting surrogate care during a parent’s own parent-time was, on this record, a day-to-day physical-custody decision rather than a major joint legal-custody decision. Brandy therefore was not in contempt for enrolling the children in daycare without James’s agreement.

What the Father Argued on Appeal

James raised two principal issues before the Utah Court of Appeals.

First, he argued that the district court applied an incorrect legal standard by treating frequent communication as a prerequisite to equal parent-time. He noted that the equal parent-time schedule and the alternative schedule involved a similar number of exchanges and contended that poor communication should not have defeated his request.

Second, he challenged the daycare rulings. He argued that daycare was a joint legal-custody decision because he was available to care for the children and because daycare allegedly involved education and facilitated the older child’s therapy. He also challenged the denial of a daytime right of first refusal and the requirement that he share work-related childcare expenses.

What the Utah Court of Appeals Held

The Court of Appeals affirmed the district court in all respects addressed on the merits.

Communication Was a Permissible Factor, Not a Categorical Prerequisite

The appellate court rejected the argument that the district court had made “frequent communication” a legal prerequisite to equal parent-time. Read in context, the district court had considered multiple factors. Communication was relevant because Utah law permits a court to consider co-parenting skills and the ability to communicate appropriately. But the children’s thriving condition under the existing schedule was the central reason for maintaining it.

The appellate court emphasized that Utah Code section 81-9-208 directs a court to give substantial weight to an existing joint-custody order when children are thriving, happy, and well-adjusted. Because the original equal-parent-time request had been adjudicated and the district court found no child-centered need for change, it acted within its discretion by denying the renewed request. Duffin, 2025 UT App 136, ¶¶ 23–27.

Daycare Was a Day-to-Day Decision on This Record

The Court of Appeals explained that legal custody concerns major decisions in a child’s life, while physical custody includes day-to-day decisions. Utah Code section 81-9-203(12) allows each parent to make decisions regarding day-to-day care and control while the child resides with that parent.

The evidence did not establish that this daycare served as the children’s school or provided specialized medical treatment. The older child’s therapist was not affiliated with the daycare and traveled to wherever the child happened to be. The father also had full-time employment by trial and proposed using relatives or neighbors when he was unavailable. On that record, Brandy’s use of daycare was not materially different from James arranging for a family member to provide care during his time. The court carefully limited its holding to the facts of the case. Duffin, 2025 UT App 136, ¶¶ 29–33.

A Right of First Refusal Is Not Automatic

Utah Code § 81-9-202(13) states an advisory preference for parental care over surrogate care and encourages cooperation when the other parent is willing and able to provide childcare. But the guideline does not create an automatic entitlement to a right of first refusal. See Wight v. Wight, 2011 UT App 424, ¶ 22, 268 P.3d 861; Childs v. Childs, 967 P.2d 942, 946 (Utah Ct. App. 1998).

Because a daytime right of first refusal would have complicated stable childcare, required more communication, and created uncertainty about where the children would be before and after school, the district court acted within its discretion by denying it. Duffin, 2025 UT App 136, ¶¶ 34–37.

The Childcare-Cost Argument Was Not Preserved

The decree required the parties to share reasonable work-related childcare expenses. James had not asked the district court to modify that provision in his petition. The Court of Appeals therefore declined to consider that challenge because it had not been preserved. Duffin, 2025 UT App 136, ¶¶ 38–39. This is a practical pleading lesson: a petition should identify each provision the party actually wants modified.

Was the Existing Provision Adjudicated or Merely Stipulated?

Before filing a petition, determine how the existing provision came into being. In Duffin, equal parent-time had been requested, tried, and rejected after factual findings. The father was therefore asking the same court to revisit a question it had already adjudicated, and many of the underlying findings remained unchanged.

A stipulated or otherwise unadjudicated custody term presents a different concern. Utah appellate courts have explained that the res judicata policy behind the changed-circumstances rule is weaker when a custody provision was not the product of judicial fact-finding about the child’s best interests. See Taylor v. Elison, 2011 UT App 272, ¶¶ 13–16, 263 P.3d 448; Elmer v. Elmer, 776 P.2d 599, 603–05 (Utah 1989). A court should not treat an unlitigated clause as though the child’s present best interests were already objectively adjudicated.

That does not mean every stipulated provision is freely reopened or that a parent can ignore the statutory threshold. It means the history matters. Counsel should identify:

whether the precise parent-time or custody term was tried;
whether the court made findings supporting it;
whether the claimed new facts were contemplated when the order was entered;
whether the real-world schedule differs from the written decree; and
whether enforcing or changing the provision would preserve or disrupt the child’s actual stability.

Parents researching this threshold can review our discussion of what qualifies as a substantial change for a Utah divorce modification.

What a Parent Seeking More Parent-Time Should Be Prepared to Prove

1. Identify Exactly What Will Change

Distinguish a modification of parent-time from a modification of physical or legal custody. Specify overnights, exchanges, transportation, holidays, school days, childcare, and decision-making. If the requested schedule would change the existing custody classification or terminate joint custody, the more demanding statutory requirements may apply.

2. Prove the Relevant Change Since the Controlling Order

Evidence may include a sustained work-schedule change, relocation closer to the child, new educational or medical needs, persistent interference with parent-time, a material change in a parent’s ability to care for the child, or an established schedule different from the written order. But the change must be tied to the relief requested. Moving closer may remove one reason the prior court denied equal time, yet Duffin shows that removing one obstacle does not necessarily overcome the remaining findings or the child’s successful status quo.

3. Show Why the Proposed Schedule Is Better for This Child

Present evidence of benefit, not simply parental fairness. A useful proposal explains how it will improve school attendance, routines, therapy participation, transportation, parent-child relationships, sibling relationships, supervision, or another concrete aspect of the child’s welfare. The plan should be workable on ordinary school days, not merely attractive on a calendar.

4. Address the Child’s Current Success Honestly

If the child is thriving, the court must take that seriously. A parent should not manufacture problems or minimize the child’s success. The better question is whether the proposed schedule preserves what is working while adding a demonstrable benefit. If there is no child-centered problem to solve and no improvement to establish, Duffin suggests the court may preserve the existing order.

5. Demonstrate That the Plan Can Function

Equal parent-time under Utah Code § 81-9-305 is not defeated by conflict as a categorical rule. Still, evidence of communication, flexibility, reliable exchanges, school proximity, and the ability to support the other parent’s relationship with the child may determine whether the proposed plan is practical and in the child’s best interest.

6. Plead Every Provision You Want Changed

If childcare expenses, decision-making authority, transportation, or a right of first refusal must change for the proposed plan to work, those requests should be expressly raised and supported. An issue omitted below may not be available on appeal.

Local Help With Utah Parent-Time Modifications

Rifleman Law & Mediation represents parents seeking or opposing custody and parent-time modifications throughout Utah County and surrounding communities. Learn more from our Saratoga Springs divorce and custody, our Saratoga Springs divorce modification page, or our city resources for a Lehi divorce lawyer, Eagle Mountain child custody lawyer, American Fork divorce lawyer, and Provo child custody attorney.

If your present parent-time order no longer fits your child’s needs, the proper analysis begins with the language and history of the existing decree, the circumstances that have actually changed, and the evidence showing why your proposed plan will improve the child’s life. Contact Rifleman Law & Mediation at 801-510-0503 to schedule a confidential consultation.

This article provides general information about Utah law and is not legal advice. Modification standards depend on the precise relief requested, the controlling order, the history of the case, and the evidence presented.