IN THE SUPREME COURT, STATE OF WYOMING

2021 WY 139

OCTOBER TERM, A.D. 2021

December 22, 2021

AUSTIN GUTIERREZ f/k/a AUSTIN 

BRADLEY,

Appellant

(Defendant),

v.

JEFFREY G. BRADLEY,

Appellee

(Plaintiff).

S-21-0079

Appeal from the District Court of Albany County

The Honorable Tori R.A. Kricken, Judge

Representing Appellant:

H. Michael Bennett of Corthell and King, P.C., Laramie, Wyoming.

Representing Appellee:

No appearance.

Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, 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 any typographical or other formal errors so that correction may be made before 

final publication in the permanent volume.
1

BOOMGAARDEN, Justice

[¶1] Austin Gutierrez (Mother) appeals the district court’s child custody modification 

order awarding Jeffrey G. Bradley (Father) primary physical custody of their two children. 

Mother contends the court abused its discretion when it determined a material change in 

circumstances had occurred that warranted reconsideration of the existing child custody

order, and when it failed to adequately consider the children’s sibling relationships in its

best interests analysis. Father did not file a brief. We affirm.

ISSUES

[¶2] We rephrase Mother’s issues as:

I. Did the district court abuse its discretion by finding a 

material change in circumstances had occurred that 

warranted reconsideration of child custody?

II. Did the district court abuse its discretion by failing to 

adequately consider the children’s sibling relationships 

in its best interests analysis?

FACTS

[¶3] Mother and Father, who married in 2009, share two minor children: QGB born in 

2009, and KJB born in 2010. During the marriage, the parties lived in Laramie, Wyoming. 

In January 2016, the parties entered into, and the court accepted, a stipulated divorce decree

that awarded them joint legal, physical, and residential custody of the children. They

agreed to an alternating two-week visitation schedule structured around Father’s work

travel. 

[¶4] Shortly after the divorce, Father remarried. Father and his wife had another child, 

BB, in 2016. In 2017, Mother moved to Cheyenne and also remarried. Mother’s husband

had one daughter, JG, from a previous relationship, and Mother and her husband had their 

first child, GG, in 2018. 

[¶5] Mother filed a petition to modify child custody when she moved to Cheyenne. The 

court granted Mother’s petition in April 2018. First, it found that her move constituted a 

material change in circumstances because the alternating two-week visitation schedule 

became “simply not workable” and “detrimental” to the children.1

 Then, it determined it 

1 After Mother moved to Cheyenne, the two-week visitation schedule meant that, during Mother’s 

visitation, the children were commuting to Laramie from Cheyenne every day for school and extra-
2

was in the children’s best interests for the parties to share joint legal custody and for Mother 

to have primary residential custody2 subject to Father’s liberal visitation.3

 

[¶6] Father filed the custody modification petition at issue in July 2020. His petition 

contended that a material change in circumstances had occurred in that: the children had

expressed a desire to live with Father; Father had moved to Evans, Colorado to be closer 

to work and now was able to be home every night; Mother had created instability in the 

children’s lives by moving three times since the last modification; and Mother had hindered 

Father’s visitation, caused scenes with Father and his wife at school events, and failed to

keep Father informed and involved with the children’s lives, schooling, and appointments. 

Father argued that it was in the children’s best interests that he be awarded primary 

residential custody. 

[¶7] In September 2020, Mother’s family relocated to Artesia, New Mexico due to her

husband’s job transfer. Mother and her husband welcomed another child, SG, sometime

thereafter. 

[¶8] The court held a hearing on Father’s petition in January 2021. The children testified

first. QGB discussed the move to New Mexico and expressed a desire for things to be like 

they were before when his parents lived closer. Although he had nothing negative to say

about life at Mother’s, when asked what he liked about being at Father’s he answered that

they “do a lot more activities” there, they “do more things as a family[,]” and he is “happier 

there sometimes.” KJB did not state a preference to reside with either parent. 

[¶9] Father testified next. He expressed some frustrations with Mother’s co-parenting 

since the 2018 custody modification. Specifically, Mother had moved several times since 

then and she did not always keep Father informed of those moves. Father also discussed 

instances when Mother was inflexible regarding visitation, failed to include him on school 

forms and thereby made it difficult for him to access information, and did not allow him to

help out with the children’s medical appointments and needs. Additionally, Mother and 

her husband had caused two public scenes by yelling at Father and his wife in front of the 

children at school events. 

curriculars. The court found that “[i]t does not serve the best interests of the children to spend their time in 

such a manner, sometimes on dangerous roads and in poor weather conditions.” 

2 The court found that both parents were competent and fit, both had a solid and loving relationship with 

the children, both were involved in the children’s lives and had demonstrated an ability to care for the 

children. It recognized that Mother had had a period of instability that seemed to have been resolved. It 

also made clear in its order that Father’s rotating two-week work schedule weighed heavily in its decision 

to award Mother primary residential custody. 3 During the two-week periods when Father was not working, he was entitled to two weekday visits from 

3:00 p.m. to 7:00 p.m., and weekend visits from Friday afternoon through Sunday. Father was also entitled 

to summer and holiday visits as outlined in the court’s order. 
3

[¶10] Father was particularly concerned about Mother’s latest move to New Mexico and 

the nine-hour distance it created between him and the children. Since Mother’s move, 

Father had only seen the children for Thanksgiving and half of Christmas break, and he felt 

that his communication with them was otherwise strained. Father wanted to see the 

children more, and because their schooling in New Mexico was online due to COVID-19, 

Father asked Mother if they could return to the rotating two-week visitation schedule, but 

this did not occur. Father expressed concern for the children because he felt like they were 

forced to keep information from him regarding Mother and their life at her home. He

feared that, if the current situation continued, KJB would “continue to have a wall [up]”

and QGB may begin “to lash out[.]” Lastly, Father explained that awarding him custody 

would allow the minor children to foster their relationships with extended family because 

both Father’s and Mother’s parents live in Laramie, Wyoming, Father’s sister lives in 

Casper, Wyoming, and his wife’s family lives in Greeley and Arvada, Colorado.

[¶11] Mother testified that she and her husband were renting their house in New Mexico 

on a six-month lease that they intended to renew for another six months. Mother explained 

that the children had a structured routine during the week, and that she was home all day

to assist with their online schooling. Due to COVID-19, the children were not participating 

in many extracurriculars, but the family attended church together and Mother promoted 

other types of family activities. Mother conceded that her move to New Mexico had made 

visitation harder, and that, at the time of the hearing, Father’s visitation primarily consisted 

of holidays. However, Mother stated she had never tried to interfere with Father’s 

visitation, and she encouraged the children to call him more. 

[¶12] Mother admitted that she had moved, at least once, within Wyoming, without telling 

Father, and that she had submitted forms to the children’s schools that included contact 

information for only her and her husband. But Mother stated these oversights were due to 

being busy, and that she never intended to interfere with Father’s access to school 

information. Mother also acknowledged that her actions towards Father and his wife at the 

two school events were embarrassing and not good examples of co-parenting. As to the 

children’s well-being, Mother claimed that she mainly saw them happy and excited. 

[¶13] In closing, Father argued that a material change in circumstances had occurred in 

that Mother had continuously failed to foster a relationship between Father and the 

children, and Mother had relocated the children to New Mexico. Mother argued that Father 

had failed to demonstrate a material change in circumstances. Each party maintained that 

the children were close to the half- and/or stepsiblings in his or her home and urged the 

court to consider sibling separation in its best interests analysis. Mother suggested that the 

sibling relationships in her home, the children’s custodial home, should be considered more 

important. Each party asserted it was in the children’s best interest for him or her to have 

primary physical custody. 
4

[¶14] In a February 2021 order, the district court found that Mother’s relocation to New 

Mexico made the existing visitation schedule difficult, if not impossible, and negatively 

impacted the children’s relationship with Father and therefore constituted a material change 

in circumstances. The court then determined it was in the children’s best interests for the 

parties to share joint legal custody and for Father to have primary physical custody. Mother 

timely appealed. 

STANDARD OF REVIEW

[¶15] Our standard of review for child custody modification decisions is well established.

We employ a two-step analysis in determining a request for a 

change in custody or visitation. The first step requires a 

showing of a material change in circumstances since the most 

recent custody and/or visitation order. Once that is shown, the 

court determines whether a change of custody and/or visitation 

is in the child[ren’s] best interests.

Hays v. Martin, 2021 WY 107, ¶ 21, 495 P.3d 905, 910 (Wyo. 2021) (quoting Lemus v. 

Martinez, 2021 WY 66, ¶ 17, 486 P.3d 1000, 1007 (Wyo. 2021); see Wyo. Stat. Ann. § 20-

2-204(c) (LexisNexis 2021). “We review a district court’s child custody modification 

ruling for an abuse of discretion.” Hays, ¶ 21, 495 P.3d at 911 (citing Rush v. Golkowski, 

2021 WY 27, ¶ 36, 480 P.3d 1174, 1182 (Wyo. 2021)). “A court does not abuse its 

discretion unless it acts in a manner which exceeds the bounds of reason under the 

circumstances.” Kimzey v. Kimzey, 2020 WY 52, ¶ 27, 461 P.3d 1229, 1238 (Wyo. 2020)

(quoting Jacobson v. Kidd, 2018 WY 108, ¶ 14, 426 P.3d 813, 820 (Wyo. 2018)). We 

evaluate “the sufficiency of the evidence to support the district court’s decision, and we 

afford the prevailing party every favorable inference while omitting any consideration of 

evidence presented by the unsuccessful party.” Id. (quoting Jacobson, ¶ 14, 426 P.3d at 

820).

DISCUSSION

I. The court did not abuse its discretion by finding a material change in 

circumstances had occurred that warranted reconsideration of child custody.

[¶16] Because custody orders are subject to res judicata, the court must find that a material 

change in circumstances has occurred before it can consider modifying an existing child 

custody order. Id. ¶ 29, 461 P.3d at 1238 (citing Bishop v. Bishop, 2017 WY 130, ¶ 11, 

404 P.3d 1170, 1173 (Wyo. 2017)). To be considered material and thereby justify

reopening the order, “the change in circumstances must affect the welfare of the children.” 

Id. (quoting Jacobson, ¶ 17, 426 P.3d at 821); see also Ianelli v. Camino, 2019 WY 67, 

¶ 23, 444 P.3d 61, 67 (Wyo. 2019). The circumstances “may have relevance in [the 

children’s lives] before there are outward signs of harm.” Ianelli, ¶ 24, 444 P.3d at 67
5

(quoting Jacobson, ¶ 19, 426 P.3d at 821). “A district court’s finding concerning a material 

change in circumstances is principally a factual determination to which we accord great 

deference.” Id. ¶ 23, 444 P.3d at 67 (citation omitted).

[¶17] Mother argues the district court abused its discretion when it found that her move 

to New Mexico constituted a material change in circumstances. Though Mother agrees 

that visitation should have been modified because her move “made the current visitation 

schedule unworkable,” she claims that the circumstances did not warrant a change in 

custody. 

[¶18] In Arnott v. Arnott we explained that a custodial parent’s relocation “and factors 

‘derivative’ of that relocation may constitute a material change of circumstances.” Kimzey,

¶ 31, 461 P.3d at 1239 (quoting Arnott v. Arnott, 2012 WY 167, ¶ 40, 293 P.3d 440, 458 

(Wyo. 2012)); see also Cook v. Moore, 2015 WY 125, ¶ 8, 357 P.3d 749, 752 (Wyo. 2015). 

The Arnott factors include: 

[A] change in the ability of the parties to maintain the existing 

parenting agreement, a change in the ability of the children to 

maintain a close relationship with the remaining parent, factors 

affecting quality of life in the new location, the child’s 

geographic preference, and the relative merits of available 

social and educational opportunities in the new location.

Cook, ¶ 10, 357 P.3d at 752 (quoting Arnott, ¶ 39, 293 P.3d at 458). These factors are 

meant to provide guidance regarding circumstances courts may consider when a party 

claims a material change in circumstances due to the custodial parent’s relocation. Id. ¶ 11, 

357 P.3d at 752. The court need not address every factor or specifically rule on each factor 

“as long as there is some indication it considered them.” Kimzey, ¶ 38, 461 P.3d at 1241; 

see also Cook, ¶¶ 11–12, 357 P.3d at 753.

[¶19] The record certainly indicates the district court considered the Arnott factors. 

Examining the circumstances of this case, the court determined that Mother’s move to New 

Mexico “will certainly cause, and has already created, difficulties (if not impossibilities) 

involving the exercise of current visitation.” It also found that the move had negatively 

impacted the children’s relationship with Father, as the parties struggled to maintain 

visitation given the nine-hour distance between their homes. It recognized that QGB had 

indicated a preference to live with Father. And it found there was “absolutely no evidence” 

that the children’s lives would “be enhanced economically, emotionally[,] or educationally 

by the move” to New Mexico. 

[¶20] Additionally, the court determined that while Mother’s multiple moves decreased 

stability in the children’s lives, Father’s stability had increased since he relocated to 

Colorado to be closer to his job of 10 years. It found that the parties had “suffered from a 
6

deterioration in co-parenting and parental communication, particularly with respect to 

[Mother] failing to foster an open relationship between the minor children and [Father.]”

The court observed that, due to the deterioration of parental communication, “[t]he minor 

children currently feel unable to be open and free about their relationships with both 

parents, to the point where they express anxiety about disclosing information to the other 

parent[.]” And it noted that the move to New Mexico had negatively impacted the 

children’s relationships with their extended family, relationships that could be fostered by 

a primary placement with Father. 

[¶21] As to Mother’s argument that the district court should have reconsidered only 

visitation, it fails for the same reasons we have rejected such arguments before. See Ianelli, 

¶¶ 25–26, 444 P.3d at 67–68; Booth v. Booth, 2019 WY 5, ¶ 21, 432 P.3d 902, 909 (Wyo. 

2019). We have previously explained that if the court finds a material change in 

circumstances has occurred, it is then “required to make an independent determination 

about what, if any, modification is in the children’s best interest.” Ianelli, ¶ 26, 444 P.3d 

at 67–68 (quoting Booth, ¶ 21, 432 P.3d at 909). Thus, when the court finds a material 

change, it may properly review both custody and visitation to determine whether

modification of the existing order is warranted. Ianelli, ¶ 26, 444 P.3d at 68.

[¶22] The district court evaluated the evidence, and adequately assessed whether the 

change in circumstances was material in accordance with our precedent. We are satisfied 

it did not abuse its discretion in determining that a material change in circumstances had 

occurred.

II. The district court adequately considered the children’s sibling relationships in its 

best interests analysis.

[¶23] Once a court has found a material change in circumstances, it must determine what 

custody arrangement is in the children’s best interests. See Hays, ¶ 21, 495 P.3d at 910

(citing Lemus, ¶ 17, 486 P.3d at 1007). This requires consideration of the factors set forth 

in Wyo. Stat. Ann. § 20-2-201(a).

4

 Walsh v. Smith, 2020 WY 25, ¶ 13, 458 P.3d 58, 64

4 “In determining the best interests of the child, the court shall consider, but is not limited to, the following 

factors”:

(i) The quality of the relationship each child has with each parent;

(ii) The ability of each parent to provide adequate care for each child throughout each period 

of responsibility, including arranging for each child’s care by others as needed;

(iii) The relative competency and fitness of each parent;

(iv) Each parent’s willingness to accept all responsibilities of parenting, including a willingness 

to accept care for each child at specified times and to relinquish care to the other parent at 

specified times;

(v) How the parents and each child can best maintain and strengthen a relationship with each 

other;
7

(Wyo. 2020). Separation of siblings is a non-statutory factor courts also must consider, 

together with other non-statutory factors such as primary caregiver status and a child’s 

custodial preference. See Ianelli, ¶ 27, 444 P.3d at 68 (collecting cases). “No single factor 

is determinative[.]” Id. (quoting Martin v. Hart, 2018 WY 123, ¶ 21, 429 P.3d 56, 63

(Wyo. 2018)). Rather, the court “must look to the totality of the evidence” to determine 

what arrangement is in the children’s best interests. Id. (citation omitted).

[¶24] In regard to sibling separation, “[w]e have consistently acknowledged a strong 

public policy in favor of preserving sibling relationships and ‘[k]eeping siblings together 

in the same household[.]’” Id. ¶ 30, 444 P.3d at 69 (quoting Paden v. Paden, 2017 WY 

118, ¶ 19, 403 P.3d 135, 141 (Wyo. 2017)). This policy is “equally applicable whether the 

children are full sibling, half[-]sibling, or stepsiblings.” Id. (quoting Aragon v. Aragon, 

2005 WY 5, ¶ 26, 104 P.3d 756, 764 (Wyo. 2005)). We have instructed district courts to 

“articulate the reasons supporting any decision to separate siblings to assure that a 

‘comprehensive evaluation of all relevant factors occurred’ prior to the custody 

determination.” Id. (citation omitted). And we have cautioned trial counsel that they 

cannot remain passive on the issue, they “must assist the trial judge in articulating on the 

record the relevant factors and their relative weight which, in the lawyer’s professional 

judgment, should act as a foundation for the [] court’s exercise of judicial discretion.’” Id.

(citing Paden, ¶ 19, 403 P.3d at 141).

[¶25] Though Mother did not request W.R.C.P. 52(a) findings, see Walsh, ¶ 17, 458 P.3d 

at 65, she now takes issue with the district court’s terse analysis regarding the children’s 

sibling relationships. The district court found:

QGB and KJB have half[-]siblings and/or stepsiblings at both 

parents’ homes. The evidence reflected that QGB and KJB are 

close to all of their various siblings. 

Without citing to authority, Mother argues that because the children had siblings in both 

households, the court was required to make a more in-depth analysis regarding sibling

separation. She also contends that the sibling separation analysis should be focused on the 

“siblings within the home of the primary caregiver” in order to avoid “separating a familial

(vi) How the parents and each child interact and communicate with each other and how such 

interaction and communication may be improved;

(vii) The ability and willingness of each parent to allow the other to provide care without 

intrusion, respect the other parent’s rights and responsibilities, including the right to 

privacy;

(viii) Geographic distance between the parents’ residences;

(ix) The current physical and mental ability of each parent to care for each child;

(x) Any other factors the court deems necessary and relevant.

Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2021).
8

unit[.]” She claims that “to simply disregard the relationships already formed and separate 

these siblings [is] contrary to the standard of Aragon.” 

[¶26] The record makes clear that the district court did not disregard the children’s sibling 

relationships in its best interests analysis—it found that close sibling relationships existed 

at both parent’s homes. Moreover, sibling separation “is just one of several factors courts 

consider in determining the primary issue—the best interests of the children.” See Aragon, 

¶ 24, 104 P.3d at 764 (citation omitted). The court further considered that QGB and KJB 

had strong relationship with both parents. In addition, it found that Mother and Father were 

both competent and fit to parent; each could provide adequate care, was willing to accept 

all parenting responsibilities, and was able to interact appropriately with the children. 

[¶27] However, the court expressed some reservations about Mother’s ability to maintain 

a relationship with Father and found that Father had been the more accommodating parent. 

The court also was concerned that Mother seemed to exclude Father from the children’s 

lives, and that Mother had “displayed some lack of judgment in handling family-related 

situations[.]” It found that Father was the more stable parent overall. It also took into

consideration QGB’s testimony in which he indicated a desire to live with Father. 

[¶28] Weighing all the required factors, the court determined that it was in the children’s

best interests to award primary physical custody to Father. See Paden, ¶ 21, 403 P.3d at 

141–42 (concluding that the district court’s sibling separation findings, though not 

extensive, were adequate because when “viewed in conjunction with the district court’s 

findings on the other relevant factors, they provide[d] us with a reasoned explanation for 

the district court’s decision”); JCLK v. ZHB, 2015 WY 95, ¶ 19, 353 P.3d 720, 724 (Wyo. 

2015) (affirming the district court’s custody decision despite a lack of explicit sibling 

separation findings because “its detailed analysis demonstrate[d] that it carefully 

considered the [child’s best interests], and determined that those interests would be served 

by awarding primary custody to Father”). The record supports that decision. The district 

court did not abuse its discretion.

[¶29] Affirmed.