IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 56

APRIL TERM, A.D. 2015

April 14, 2015 

HEIDI GJERTSEN,

Appellant

(Defendant),

v.

HERMAN TER HAAR,

Appellee

(Plaintiff).

S-14-0106

Appeal from the District Court of Sheridan County

The Honorable John G. Fenn, Judge

Representing Appellant:

Amanda K. Roberts of Lonabaugh & Riggs, LLP, Sheridan, Wyoming.

Representing Appellee:

Rene Botten of Botten Law Office, Sheridan, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made 

before final publication in the permanent volume.
2

KITE, Justice.

[¶1] Pursuant to a California court order, Herman Ter Haar (Father) has sole legal and 

physical custody of the parties’ child (the child), subject to limited visitation by Heidi 

Gjertsen (Mother). Mother appeals from the district court’s order denying her petition for 

modification of the California order pertaining to custody, care and visitation with the 

child. We conclude the district court erred by failing to give full faith and credit to the 

terms of the California order which specifically allowed a change in the terms of 

visitation when it would be in child’s best interests, but it correctly concluded there was 

no material change in circumstances to justify a change in custody. Consequently, we 

reverse and remand in part and affirm in part. 

ISSUES

[¶2] Mother presents the following issues on appeal, which we rephrase:

1. Did the district court err by failing to recognize that the foreign custody 

order allowed the visitation terms to be altered based on the best interests of the child 

without a showing of a material change in circumstances?

2. Did the district court err by finding no material change in circumstances to 

justify a change in custody?

Father presents a single issue:

1. Did the district court abuse its discretion when it denied 

Mother’s petition to modify child custody, support, 

visitation and bond requirement by finding that she had 

failed to demonstrate a material and substantial change of 

circumstances as required by Wyoming law?

FACTS

[¶3] This case presents a unique set of facts and course of proceedings. Neither Father 

nor Mother is a United States citizen although they both have permanent residence (green 

card) status. One child was born as issue of their marriage in 2006. The parties were 

divorced by the district court in 2009; however, the issues of child custody, visitation and 

support were not addressed by the Wyoming court because California was the child’s 

home state at that time. Prior to the California court’s determination of child custody, 

etc., Mother removed the child from the United States to her native country, Norway,

without Father’s consent and in violation of a court order. Father proceeded under the 
3

Hague Convention on the Civil Aspects of International Child Abduction1to have the 

child returned to the United States and, after several months, he was successful. 

[¶4] With the child back in the United States, the California court held a number of 

hearings on the outstanding issues, and the parties were eventually able to reach an 

agreement regarding custody, visitation and child support. The stipulated judgment 

stated that Father and the child had relocated to Sheridan, Wyoming and recognized that 

Mother had plans to move there, as well. Father also married Carmela Ter Haar 

(Stepmother) and adopted her son (Stepbrother). The California order specifically 

recognized that, given the child would be living in Wyoming with Father, Wyoming 

would be her home state commencing September 1, 2010. 

[¶5] The California order stated in relevant part:

5. Whereas, [Father] is relocating to Sheridan, Wyoming,

and on February 19, 2010, the Court granted his request that 

the minor child be permitted to move with him;

6. Whereas, [Father] relocated to Wyoming on or about 

March 29, 2010, with [the child]; 

. . . .

8. Whereas, [Mother] intends to relocate to Sheridan, 

Wyoming;

. . . . 

 

11. Child Custody. [Father] is awarded sole legal and 

physical custody of the minor child . . . . The parties stipulate 

that this order is in the best interests of [the child]. The 

parties stipulate that this is a final and permanent 

determination of custody, meeting the requirements of 

Montenegro v. Diaz (2001) 26 Cal 4

th 249. . . . See also 

paragraph 27 herein. 

12. Visitation Schedule. The minor child shall reside 

with [Father] at all times not set out below:

. . . .

 

1 The Hague Convention establishes the “legal rights and procedures for the prompt return of children 

who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights.” 

22 U.S.C. §§ 9001(a)(4). 
4

b. It is anticipated that [Mother] will move to 

Wyoming before September 1, 2010. Therefore commencing 

on September 1, 2010 or the first day of the month following 

[Mother’s] relocation to Wyoming, whichever is sooner, the 

parties stipulate and the Court orders the following visitation 

schedule:

c. [Mother] shall have visitation with [the child] 

on alternating weekends for the time periods setout herein 

below; in the event the parties are unable to determine an 

alternating weekend schedule, the schedule shall be 

determined by providing [Mother] all even-numbered 

weekends during a calendar year of 52 weeks, for the 

following time periods:

i. Saturday: from 10 a.m. to 4:00 p.m.

ii. Sunday from 10 a.m. to 4:00 p.m. 

. . . . 

d. Commencing on September 1, 2010, [Mother] 

shall have visitation with [the child] on every Wednesday 

evening from 5:30 p.m. to 7:30 p.m. 

e. In the event that a visitation is missed due to 

travel, including consecutive weeks of vacation travel, or 

other obligations, it will be “made up” at the earliest mutually 

agreeable available date.

f. [Holiday visitation set out]. 

g. Supervised Visitation. Until [Mother] 

provides $50,000 in cash as security in the event of a reabduction of [the child], . . . [Mother’s] custodial time shall 

be supervised by a mutually agreed upon nonprofessional 

provider. . . .

h. Travel. [Mother] must have written permission 

from [Father] or a court order to take [the child] out of the 

state of Wyoming. [Mother] must have a court order to take 

[the child] out of the United States.
5

[Additional provisions pertaining to transportation, 

Mother’s citizenship, notifications of authorities of order, 

restrictions on Mother’s travel with the child and the security 

bond].

17. Country of Habitual Residence. The country of 

habitual residence of [the child] is the United States. [The 

child’s] home state is California.

18. Change of Home State. Following their move to 

Wyoming, the parties stipulate and the court so finds that [the 

child’s] home state shall be Wyoming, as California will be 

an inconvenient forum as neither [the child] [n]or the parties 

will be residents of California. Commencing September 1, 

2010, Wyoming shall be the home state for [the child], 

pursuant to Wyoming Statute 20-5-301 and 20-5-307.

19. Change of Residence. [Father] shall not relocate with 

[the child] more than thirty (30) miles from the Sheridan, 

Wyoming court house without the written permission of 

[Mother] or an order of court.

[Provisions pertaining to child support, health care expenses, 

custody of child’s passports, restrictions on discussion of the 

other parent and/or any litigation pertaining to the child in the 

presence of the child, and attorney fees].

27. Final Judgment. The orders herein are final and 

permanent; a material change of circumstances is required to 

modify these orders. However, [Mother’s] visitation schedule 

may be adjusted on request by either party, without the 

necessity of proving a change of circumstances, as is in the

best interests of [the child] as the Court, in its discretion, may 

believe proper. 

Father registered the California judgment in the district court in Sheridan. 

[¶6] While Mother was still in California and the child was in Wyoming, visitation was 

conducted through Skype. Mother felt that her ability to communicate with the child was 

hampered because Father or Stepmother was always present during the Skype sessions. 
6

Mother moved to Sheridan in January 2011 and began supervised visitation with CASA2

monitoring. At some point, CASA advised it would not able to monitor the lengthy 

weekend visits. Mother posted bond in June 2012, and the parties began transitioning to 

unsupervised visitation. 

[¶7] The visitation exchanges were contentious, often involving disagreements between 

Mother, Father and Stepmother over documenting when the child was dropped off and 

picked up. In addition, the parties disagreed over Father’s and Stepmother’s discussion 

with the child of Mother’s abduction or “kidnapping” of her and their disciplining the 

child by forcing her to take cold showers or eat hot sauce. Both parties called law 

enforcement on various occasions to address their disputes. The officers recommended 

the parties use CASA or at least a neutral site for exchanges. The child became anxious 

and sometimes refused to go to visits. At other times, she had tantrums while in Mother’s 

care. The parties began video recording their interactions with each other and the child. 

[¶8] On February 22, 2013, Mother filed a petition to modify the California order. She 

asserted there had been material changes in circumstances since the California order was 

entered and sought modification of the custody, child support, visitation and bond

provisions. Father contested Mother’s petition and counterclaimed, requesting that his 

obligation to pay child support be removed and an order entered requiring Mother to pay 

him child support.3 

[¶9] In the spring of 2013, Father enrolled the child in counseling with licensed 

counselor, Deiadra (Dee) Smidt. Ms. Smidt gave all of the parties a list of rules for 

relating to each other and the child. These rules were designed to help the child’s 

emotional state and included: no audio or video recording of the child; Father was not to 

threaten Mother with trespass when she came to his home; no unnecessary calls to law 

enforcement; no use of the techniques of cold showers or hot sauce to discipline the child 

(which the counselor characterized as “abuse”); Father and Mother, rather than 

Stepmother, would discipline the child unless they were not available; no quizzing the 

child; no “bad mouthing” each other in front of the child; and Father and Stepmother 

were to cease saying that Mother was mentally ill. The counseling was effective in 

helping relieve the child’s anxiety about visitation with Mother. By the time of trial in 

November 2013, the mother/daughter relationship had improved and the exchanges were 

less contentious. In fact, law enforcement had not been asked to intervene for several 

months prior to trial. 

 

2 CASA stands for “court appointed special advocate.” Wyoming Rules of Procedure for Juvenile Court, 

Rule 8. 

3 Under the terms of the parties’ agreement and the California order, Father was required to pay Mother 

$200 per month in child support even though he had physical custody of the child. 
7

[¶10] The district court held a two day trial and ruled Mother was required to establish a 

material change of circumstances in order to warrant a change in custody or visitation and 

she had not met that burden. The district court, therefore, denied her modification 

motion, although it also indicated a change in the terms of visitation may be in the child’s 

best interests. Mother appealed the district court’s denial of her modification motion and 

Father appealed the district court’s failure to rule on his counterclaim for modification of 

the child support obligation. We remanded to the district court for a determination of 

Father’s counterclaim. The district court entered an order terminating Father’s child 

support obligation and ordering Mother to pay Father $50 per month in support. There 

was no subsequent appeal of the child support order by either party, and Father 

voluntarily dismissed his cross-appeal. 

 

STANDARD OF REVIEW

[¶11] We review the district court’s order on a petition to modify child custody for abuse 

of discretion.

We will not interfere with the district court’s decision 

regarding modification of custody absent a procedural error 

or a clear abuse of discretion. In determining whether the 

district court has abused its discretion, we must decide 

whether it could reasonably conclude as it did. Judicial 

discretion is a composite of many things, among which are 

conclusions drawn from objective criteria; it means exercising 

sound judgment with regard to what is right under the 

circumstances and without doing so arbitrarily or 

capriciously.

Gray v. Pavey, 2007 WY 84, ¶ 8, 158 P.3d 667, 668 (Wyo. 2007) (citations 

omitted). The issue of whether the district court erred by failing to give full faith 

and credit to the California order is a matter of law which we review de novo. 

Witowski v. Roosevelt, 2009 WY 5, ¶ 14, 199 P.3d 1072, 1076 (Wyo. 2009). 

DISCUSSION

1. General Law on Modification of Custody and Visitation Awards

[¶12] Wyoming law on modification of an order on the care, custody and visitation of 

children is set forth in Wyo. Stat. Ann. § 20-2-204 (LexisNexis 2013):

(a) Either parent may petition to enforce or modify any 

court order regarding custody and visitation.

. . . .
8

(c) A court having jurisdiction may modify an order 

concerning the care, custody and visitation of the children if 

there is a showing by either parent of a material change in 

circumstances since the entry of the order in question and that 

the modification would be in the best interests of the children 

pursuant to W.S. 20-2-201(a). In any proceeding in which a 

parent seeks to modify an order concerning child custody or 

visitation, proof of repeated, unreasonable failure by the 

custodial parent to allow visitation to the other parent in 

violation of an order may be considered as evidence of a 

material change of circumstances. 

[¶13] Section 20-2-204(c) mandates a two-step inquiry in deciding whether to grant a 

petition to modify an order. 

The first step requires a showing that there has been “a 

material change in circumstances since the entry of the order 

in question.” § 20–2–204(c). Because of the res judicata 

effect afforded custody orders, such a finding is a threshold 

requirement. Hertzler v. Hertzler, 908 P.2d 946, 949–50 

(Wyo.1995). The district court does not properly acquire 

jurisdiction to reopen an existing custody order until there has 

been a showing of “a substantial or material change of 

circumstances which outweigh society's interest in applying 

the doctrine of res judicata” to a custody order. Kreuter v. 

Kreuter, 728 P.2d 1129, 1130 (Wyo.1986). In short, unless 

the district court finds a material change in circumstances, it 

cannot proceed to the second step—determining whether a 

modification would be in the best interests of the child.

Hanson v. Belveal, 2012 WY 98, ¶ 18, 280 P.3d 1186, 1193 (Wyo. 2012), quoting In re 

TLJ, 2006 WY 28, ¶ 8, 129 P.3d 874, 876 (Wyo. 2006) (some citations omitted). See 

also Olsen v. Olsen, 2013 WY 115, ¶ 9, 310 P.3d 888, 891 (Wyo. 2013). 

2. Effect of California Order

[¶14] The California order contains a unique provision allowing modification of 

visitation upon a showing that it is in the child’s best interest, without requiring the 

petitioner to show a material change of circumstances. That provision states:

27. Final Judgment. The orders herein are final 

and permanent; a material change of circumstances is 

required to modify these orders. However, [Mother’s] 
9

visitation schedule may be adjusted on request by either 

party, without the necessity of proving a change of 

circumstances, as is in the best interests of [the child] as the 

Court, in its discretion, may believe to be proper.

[¶15] Mother argues on appeal that the district court erred by failing to give full faith 

and credit to this provision of the California order and, instead, requiring her to establish 

a material change of circumstances occurred subsequent to entry of the order before it 

would conduct a best interests analysis to determine if her visitation rights should be 

extended. Father maintains Mother waived this argument by failing to present it to the 

district court. “[I]ssues raised for the first time on appeal generally will not be considered 

by this court unless they are jurisdictional or issues of such a fundamental nature that 

they must be considered.” Byrd v. Mahaffey, 2003 WY 137, ¶ 10, 78 P.3d 671, 674

(Wyo. 2003).4 Our case law does not define with precision what issues are of “such a 

fundamental nature that they must be considered.” Id., ¶¶ 10-11, 78 P.3d at 674. The 

fact that the issue is constitutional does not necessarily make it fundamental. For 

example, in DG, 916 P.2d at 997-98 and TR, 736 P.2d at 719-20, we refused to address 

issues concerning the constitutionality of the parental rights termination statutes. In 

contrast, we considered in Kordus v. Montes, 2014 WY 146, ¶ 10, 337 P.3d 1138, 1141 

(Wyo. 2014), a claim that application of the statute of limitations to a minor’s medical 

malpractice action violated the fundamental right to access to courts even though the 

issue was not raised at trial. In Zupan v. Zupan, 2010 WY 59, ¶ 34, n.4, 230 P.3d 329, 

338, n.4 (Wyo. 2010) we ruled Mother’s argument that the residency provision in the 

divorce decree violated her constitutional right to travel could be considered on appeal 

even though it was not raised at trial. 

[¶16] Although we recognize the lack of clarity of this precedent, we do not need to 

specifically address whether an argument that the district court did not give full faith and 

credit to another state’s decree is a fundamental issue because Father registered the 

California order in Wyoming and, in response to mother’s modification petition, asked 

the district court repeatedly throughout the proceedings to enforce the terms of the 

California order. In fact, Father asked the trial court to modify the child support 

provision of the California order without requiring a material change in circumstances 

because the order specifically allowed such a change. 

[¶17] It is troubling that the precise issue presented by Paragraph 27 of the California 

order was not presented to the district court, particularly in light of the district judge’s 

repeated requests for the parties to provide him with authority showing that the visitation 

 

4 We have also on occasion said the plain error standard applies in cases where a constitutional issue was 

not raised below. See, e.g., WR v. Natrona Co. Dep’t of Family Servs. (In re DG), 916 P.2d 991, 998 

(Wyo. 1996); TR v. Washakie County Dep’t of Public Assistance and Social Servs., 736 P.2d 712, 720 

(Wyo. 1987).
10

provision of the order could be modified without showing a change of circumstances. 

However, as we carefully read the California order, the significance of the provision 

which allowed changes in visitation in the best interest of the child without a showing of 

material change of circumstances is clear to this Court. 

[¶18] United States Const. Art. 4, § 1 states:

Full Faith and Credit shall be given in each State to the 

public Acts, Records, and judicial Proceedings of every other 

State. And the Congress may by general Laws prescribe the 

Manner in which such Acts, Records and Proceedings shall 

be proved, and the Effect thereof.

Application of the principle of full faith and credit presents unique challenges in the 

context of child custody and support cases because the orders are often subject to future 

modification. Acting under its authority in Art. 4, § 1, Congress enacted 28 U.S.C. § 

1738A to ensure states give full faith and credit to other states’ custody orders. Section 

1738A(a) provides: “[t]he appropriate authorities of every State shall enforce according 

to its terms, and shall not modify except as provided in subsections (f), (g), and (h) of 

this section, any custody determination or visitation determination made consistently with 

the provisions of this section by a court of another State.” (Emphasis added.) 

Subsections (f), (g), and (h) of § 1738A prevent forum shopping by allowing a court to 

modify a custody order only when it otherwise has jurisdiction and another court does 

not. 

[¶19] In addition, all of the states in the union have adopted some version of the 

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which in 

Wyoming is codified at Wyo. Stat. Ann. §§ 20-5-201 through § 20-5-502. 24A Am. Jur. 

2d, Divorce & Separation, § 1124 (2015). Under the UCCJEA, a child’s home state 

makes the initial custody determination. See Wyo. Stat. Ann. § 20-5-301. “Home state” 

is defined as: [T]he state in which a child lived with a parent or a person acting as a 

parent for at least six (6) consecutive months immediately before the commencement of a 

child custody proceeding.” Section 20-5-202(a)(vii).

[¶20] In this case, California was the child’s home state at the time of the initial custody 

determination. However, the parties and the California court recognized that the parties 

would be relocating to Wyoming, which would become the child’s home state. As the 

child’s home state, Wyoming had authority to modify the California order under 

UCCJEA. Sections 20-5-301, 20-5-303. Wyoming law typically requires a material 

change of circumstances to modify a custody or visitation determination. However, 

under the Supremacy Clause, U.S. Const. art. I, cl.2, federal law preempts state law in 

proper cases. Here, federal law requires we give full faith and credit to the California 

order as long as it is in effect. See generally, Quenzer v. Quenzer, 653 P.2d 295 (Wyo. 
11

1982) (recognizing primacy of federal full faith and credit law in § 1738A over uniform 

state laws like the UCCJEA). Pursuant to 28 U.S.C. § 1738A, the California order has to 

be enforced according to its terms, and those terms, which were stipulated by the parties 

and approved by the California court, state that Mother’s visitation rights may be altered 

upon a showing that it is in the best interests of the child, even though no material change 

of circumstances has occurred. California law specifically authorizes such provisions to 

promote flexibility in visitation orders. See, e.g, In re Marriage of Lucio, 74 Cal.Rptr.3d 

803 (Cal. Ct. App. 2008), citing In re Marriage of Brown & Yana, 127 P.3d 28 (Cal. 

2006). 

[¶21] We addressed a comparable situation in Witowski, 2009 WY 5, 199 P.3d 1072. 

That case involved a Virginia child support order which required the father to pay child 

support until the child was twenty-three years old as long as she was a full time college 

student. We recognized the provision was inconsistent with Wyoming law but stated that 

we are required under federal law, 28 U.S.C. § 1738B, to enforce the other state’s child 

support order in accordance with its terms until such time as it was properly modified. 

Id., ¶¶ 20-21, 199 P.3d at 1077-78. Applying those principles here, the California order 

must be enforced according to its terms, including the provision which incorporates the 

lower standard for visitation alteration, until that term is properly modified.

[¶22] Furthermore, it is not completely unheard of in Wyoming for a court to allow 

minor changes to the terms of a visitation order without a showing of a material change 

of circumstances, particularly when the parties have agreed to allow the court to make 

such changes. In Zupan, the parties entered into a child custody agreement which 

alternated residential custody of the children on an annual basis. By its own terms, the 

agreement expired after five years. Zupan, ¶¶ 4-5, 230 P.3d at 332. When the agreement

expired, the parties attempted mediation but it was not successful. The parties then 

petitioned the court to determine the future custodial arrangement for the minor children. 

Id., ¶ 7, 230 P.3d at 332. Although the district court did not find a material change of 

circumstances and, therefore, left the custody arrangement the same, it did revise the 

visitation provisions of the agreement. Id., ¶¶ 18, 26, 230 P.3d at 334, 336-37. We 

recognized the change of circumstances requirement on appeal, but affirmed the district 

court’s changes to visitation as being in the best interests of the children. Id., ¶ 36, 230 

P.3d at 339. 

[¶23] Similarly, in Inman v. Williams, 2009 WY 51, 205 P.3d 185 (Wyo. 2009), we 

affirmed, in all relevant respects, the district court’s order which found no material 

change of circumstances had been shown for change of custody but ordered changes to 

the visitation provisions of the decree. Of particular interest, we recognized in Inman that 

visitation provisions may need to be flexible in order to meet the best interests of the 

children. Id., ¶ 4, 205 P.3d at 188-89. See also Basolo v. Basolo, 907 P.2d 348, 355 

(Wyo. 1995); Stirrett v. Stirrett, 35 Wyo. 206, 248 P. 1 (1926) (approving flexibility in 

visitation orders). 
12

[¶24] Under the particular circumstances presented here, including the California court’s 

and the parties’ recognition that the visitation provisions of the order may be revised to 

promote the child’s best interest without a material change of circumstances, we conclude 

the district court had authority to revise those portions of the decree as appropriate. On 

remand, the district court shall conduct a best interests analysis to determine if 

modification of the visitation provisions of the California order is warranted. Given the 

contentious nature of the parties’ relationship and these proceedings, perhaps 

consideration should be given to appointment of a guardian ad litem to represent the 

child’s best interests.

3. Material Change of Circumstances

[¶25] Although we have already ruled that a material change of circumstances was not 

required for the district court to revise the visitation provisions of the California order, we 

still must address whether Mother established a material change of circumstances to 

justify modification of the custody provision of the order. The district court concluded 

Mother had not met the threshold requirement because she had not proven a material 

change of circumstances had occurred since entry of the order. 

[¶26] Initially, Mother argues the district court erred by requiring her to meet a higher 

burden for showing a material change of circumstances in this case. She directs us to the 

following comment made by the district court during the trial in this case:

[G]iven the nature of this case, whatever happened in 

California – I mean, this is an extraordinarily unusual order 

from California. I have to assume . . . there is a basis for it. I 

don’t want to get into that can of worms and re-litigate it, but, 

you know, it is what it is. 

So, in the context of that order and whatever behavior 

got to that point, material change of circumstances may be, 

you know, a very high burden in this case as opposed to 

another case. And I think that’s the law, you know, material 

change of circumstances is factual driven, factual specific to 

each case. And this case, you know, one could argue, and I 

will likely find that in this case material change of 

circumstances is higher than some of the other cases I preside 

over. 

[¶27] Mother’s claim has no merit; the district court’s order denying her petition for 

modification does not indicate that it imposed a higher burden upon Mother than the law 

requires for showing a material change of circumstances. It recited the correct standard 
13

and, as we will explain below, it properly applied its discretion in determining that 

Mother had not established a material change of circumstances to modify custody. The 

district court’s comment was likely a reference to the language in the California order, 

which was stipulated by Mother and Father, recognizing that Mother had previously 

taken the child without Father’s approval to Norway and did not return until several 

months later after Father had obtained relief in a Hague Convention proceeding. 

[¶28] Mother seems to refuse to take responsibility for her actions and, in fact, referred 

to the Hague Convention laws regarding international child abduction as 

“extremely unfair.” She insisted that she had to leave with the child to escape the 

Father’s domestic violence. However, there apparently was no finding by any 

international or California court that the alleged violence ever took place or, perhaps 

more importantly, that any such abuse justified Mother’s actions. Abduction of a child 

by a parent is always wrong and weighs against custody and visitation privileges. See, 

e.g., Basolo, 907 P.2d at 354-55. The district court correctly recognized the significance 

of this history in conducting its material change of circumstances analysis. 

[¶29] A district court’s determination of whether a material change in circumstances has 

occurred is primarily factual and entitled to great deference. Hanson, ¶ 13, 280 P.3d at 

1192. We decide whether, “examining the record in the light most favorable to the 

successful party, the district court could have reasonably concluded as it did.” Id.,

quoting Morris v. Morris, 2007 WY 174, ¶ 7, 170 P.3d 86, 89 (Wyo. 2007). In order to 

be considered material and justify reopening the decree, the change in circumstances 

must affect the welfare of the child. Hanson, ¶ 34, 280 P.3d at 1197; Kappen v. Kappen, 

2015 WY 3, ¶ 15, 341 P.3d 377, 382 (Wyo. 2015). 

[¶30] Mother argues that a number of circumstances had changed since the California 

order was entered and they were sufficiently material to justify modification of the 

custody provision. First, she asserts that she and the child had a good relationship prior 

to the California order, but their relationship had deteriorated since. She directs us to a 

transcript from the California proceedings in which one of the visitation monitors 

testified that the child enjoyed visitation with Mother. The transcript was part of a packet 

that Father requested the district court judicially notice at trial. Mother actively contested 

Father’s motion, and the district court refused to take judicial notice of the whole packet 

but told the parties that if they wanted a certain document to be considered, they should 

present it as evidence at the hearing, give the opposing party the opportunity to object, 

and the district court would rule on its admissibility. Neither party offered the transcript 

as evidence at trial. Given the information was not part of the trial evidence, the district 

court certainly cannot be said to have abused its discretion by failing to consider it. 

[¶31] Next, Mother asserts that Father’s and Stepmother’s efforts to alienate the child 

from her amount to a material change of circumstances. She claims the evidence showed 

that Father and Stepmother interfered with the Skype communications before Mother 
14

moved to Wyoming and improperly required that she provide various documentation, 

such as copies of her driver’s license and automobile insurance and proof of residency 

and immigration status, before allowing her to exercise visitation in Wyoming. Father 

also contacted the United States Department of Immigration to have Mother deported. 

The district court properly ruled this evidence was insufficient to show a material change 

of circumstances because Father’s actions were not ongoing at the time of trial. Remote 

and isolated instances of conduct do not usually satisfy the requirements for establishing 

a material change of circumstances. Hanson, ¶ 43, 280 P.3d at 1199. 

[¶32] Mother also directs us to evidence that the child began to refer to Stepmother as 

“mommy” and Mother as “Heidi,” as evidence of Father’s efforts to alienate her from the 

child. Confusing a child about the identity or position of the non-custodial parent is not 

appropriate and could, in proper circumstances, establish parental alienation to the point 

of being a material change in circumstances. Gaines v. Doby, 773 P.2d 442, 446 (Wyo. 

1989). However, the evidence did not establish that Father improperly encouraged the 

child to view Stepmother as her primary maternal figure. Stepmother testified they did 

not inappropriately influence the child in that manner. Instead, she testified that the child 

began addressing Stepmother as “mommy” because the child’s stepbrother did. This was 

a reasonable explanation because, when the child returned from Norway, she did not 

speak English and the stepbrother helped her learn the language. 

[¶33] The district court made the following findings regarding Mother’s parental 

alienation claims:

54. Mother did present some evidence that Father and 

Stepmother have attempted to alienate the child from her. 

They have repeatedly informed [the child] that she was 

kidnapped as an infant and have given the child “kidnapping 

training” to make sure that she knows what to do if she is ever 

re-abducted. This has made the child fearful and anxious to 

be left alone with Mother. Father has also tried to have 

Mother deported.

55. Mother likewise has engaged in some behavior that 

could alienate the child from Father. She has repeatedly 

asked the child if Father ever says or does anything to hurt the 

child and consistently quizzes the child about the way she is 

treated in Father’s house and about Father’s lifestyle. Her 

behavior borders on coaching the child into thinking she is 

being abused by Father.

56. Mother did present some evidence that Father has 

engaged in some conduct that makes the visitation exchanges 
15

contentious. However, Father also presented evidence that 

Mother has also engaged in behavior that contributes to the 

conflict at these exchanges, including secretly videotaping the 

child and questioning her about Father’s lifestyle. 

[¶34] The trial evidence included the parties’ testimony and videotapes of various 

interactions between the parties and the child. As the district court noted, the evidence 

shows poor judgment by both parties and attempts by each to convince the child that the 

other parent has mistreated her. The district court’s findings are supported by the 

evidence and Mother does not demonstrate that they are incorrect or amount to an abuse 

of discretion. Instead, Mother’s argument focuses on her evidence and perspective on the 

facts, which is actually the opposite of our standard of review requiring us to give the 

facts all reasonable inferences to support the prevailing party’s view. See Willis v. Davis, 

2013 WY 44, ¶ 7, 299 P.3d 88, 91 (Wyo. 2013). The district court aptly summed up the 

situation with this finding:

 57. While the behavior of both parties has sometimes been 

appalling, and is definitely not in the best interests of the 

child, it does not amount to a material change in 

circumstances. These parties have had an antagonistic 

relationship since Mother took the child to Norway in 2008. 

If anything, their relationship and behavior has improved with 

the assistance of Ms. Smidt. 

[¶35] As the district court recognized, the parties’ behavior toward one another was not 

a new development or, in other words, a material change of circumstances. The 

California order contains the following provision: 

24. No Discussion in Presence of Minor Child. The 

parties shall not discuss the other parent or the child custody 

litigation and proceedings with the minor child or with 

another within the hearing distance of the minor child. 

Neither parent shall make derogatory remarks about the other 

parent or the parent’s family in the presence of the minor 

child or within the hearing distance of the minor child. 

The fact that this provision was included in the California order shows that the acrimony 

between the parties was long standing and pervasive. 

[¶36] Mother also argues a material change of circumstances occurred because there was 

no longer any risk she would abscond with the child. Mother asserts that the protections 

in place, including the $50,000 bond, her inability to access the child’s passports, and 

Mother’s status as a permanent resident of the United States, eliminate any concern about 
16

a future wrongful taking of the child. The district court specifically found it was not 

convinced Mother was no longer a flight risk. The evidence supports that finding. 

Mother has had only sporadic employment since moving to Sheridan, her primary means 

of support appears to be gifts or loans from her parents in Norway, she does not own any 

real property in Sheridan, and there was no evidence that she has any family or other 

support network in Sheridan. It appears that her only tie to the community is the child. 

Given her history of illegally removing the child from the country and keeping her from 

Father and Mother’s lack of ties to the Sheridan community, the district court properly 

rejected Mother’s claim that she was no longer a flight risk.5 

[¶37] Mother also argues that she established a material change of circumstances based 

upon violence in Father’s household. As we stated earlier, Mother asserted that Father’s 

abuse of her prompted her to flee with the child to Norway, but that allegation was never 

accepted by any court. She claims, however, there is evidence of on-going abuse in 

Father’s home and that amounts to a material change in circumstances. The trial 

evidence included testimony and a police report about an instance where Father hit 

Stepmother on the head with his open hand for using his work computer. Father was 

arrested for “unlawful touch,” but the charges were dropped. In addition, Father and 

Stepmother had disciplined the children by requiring them to take cold showers and/or 

eat hot sauce. 

[¶38] Ms. Smidt addressed the treatment of the children during therapy and with her list 

of rules. She told Father and Stepmother that their disciplinary methods were improper 

and, in her opinion, constituted abuse and directed them to desist. There is no indication 

they failed to follow her directions. Moreover, the Department of Family Services 

investigated the incidents and concluded the children had not been abused within the 

meaning of the law. See Willis, ¶¶ 16-17, 299 P.3d at 93 (no material change in 

circumstances created by stepbrother’s alleged physical abuse of children because the 

allegations were not substantiated by the police and custodial parent took steps to assure 

the stepbrother was not left alone with the children). With regard to the spousal abuse, 

we note that it was a single instance that was quickly dismissed by the county prosecutor. 

[¶39] Household abuse is always improper and contrary to the best interests of the 

children. Section 20-2-201(c) states:

(c) The court shall consider evidence of spousal abuse 

or child abuse as being contrary to the best interest of the 

children. If the court finds that family violence has occurred, 

the court shall make arrangements for visitation that best 

 

5 This ruling also supports the district court’s refusal to reduce or eliminate the bond requirement. See

Stonham v. Widiastuti, 2003 WY 157, ¶ 28, 79 P.3d 1188, 1197 (Wyo. 2003) (district court has discretion 

to impose a bond requirement to ensure parent complies with custody and visitation portions of a decree). 
17

protects the children and the abused spouse from further 

harm.

While the incidents of violence and improper discipline in Father’s household give us 

pause, we generally perceive them to be isolated and remote rather than on-going. 

Consequently, we cannot say the district court abused its discretion by failing to find they 

amounted to a material change of circumstances. See, e.g., Hanson, ¶ 47, 280 P.3d at 

1200 (isolated or remote actions that were not on-going did not justify a change of 

custody). 

[¶40] Although their precise arguments may have changed over time, in large part, the 

parties’ complaints and positions are the same as they were at the time of the California 

order. Mother claims Father is abusive, and Father claims Mother is a flight risk. We 

rejected a similar type of argument in Hanson, ¶ 48, 280 P.3d at 1200. 

Much of Father’s case focused on proving he was a better 

parent than Mother. His arguments would have been 

appropriate in an initial custody determination. However, the 

standard is different in a modification proceeding because 

changes in custody are not favored and should not be granted 

except in clear cases. See, e.g., Leitner v. Lonabaugh, 402 

P.2d 713, 718–19 (Wyo.1965). As we said in CLH, ¶ 9, 129 

P.3d at 877: “Under the principles of res judicata, a court does 

not have the discretion to reopen a custody order simply 

because, looking at the best interests of the child, it believes it 

can make a better decision than was made in the prior custody 

order.” Father, thus, had the burden of establishing a material 

change of circumstances before the best interest analysis was 

appropriate. Id., ¶ 11, 129 P.3d at 877. See also, Selvey v. 

Selvey, 2004 WY 166, ¶ 16, 102 P.3d 210, 214–15 

(Wyo.2004). On this record, we hold the district court could 

have reasonably concluded Father failed to establish a 

material change of circumstances. Consequently, it did not 

abuse its discretion by denying Father's request for a change 

of custody.

Id., quoting Morris, ¶ 27, 170 P.3d at 93. See also Kappen, ¶¶ 30-32, 341 P.3d at 385-86. 

[¶41] By the time of the trial, the parties’ interactions, the visitation exchanges and the 

child’s behavior during visitation had improved considerably. The district court 

attributed these changes largely to Ms. Smidt’s assistance. Ms. Smidt testified that her 

rules were intended to address the child’s anxiety caused by the parties’ interactions with 
18

one another and the child. Her counseling had facilitated better communication and 

behavior by the parties and the child. 

[¶42] The district court properly recognized the improved conditions. We have said that 

in determining whether there has been a material change of circumstances, the court may 

consider the situation at the time of trial, rather than at the time of the petition. See

Hanson, ¶¶ 35-36, 280 P.3d at 1197-98 (district court properly ignored Father’s 

contention that Mother’s relocation out of state was a material change of circumstances 

since she had moved back to Wyoming by the time of the trial). 

Given stability in the child’s life is of utmost importance and custody changes are not 

favored and should only be granted in clear cases, we conclude the district court did not 

abuse its discretion by ruling that Mother had not proven a material change of 

circumstances to justify reopening the California custody order. See Kappen, ¶ 12, 341 

P.3d at 382. 

[¶43] Affirmed in part and reversed and remanded in part for further proceedings 

consistent with this opinion.