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Due Process in Family Law Pleadings – Trial Preparation

Matthew Wadsworth of Arnold & Wadsworth

By Matt Wadsworth


A minority of courts are requiring parties to plead every factual issue relevant to the end relief sought in order to preserve due process to the other party on issues of custody or other family law related topics, even when these events occurred postpetition. This requirement is not common and essentially non-existent in many districts.

The rule ostensibly protects the due process rights of the non-pleading party. More succinctly: do pleading requirements that give notice to the other party of a short and plain statement of the claim entitling one to relief also require the pleading party to supplement the pleading to include post-petition facts? MBNA Am. Bank, N.A. v. Goodman, 2006 UT App 276, 140 P.3d 589, 591(“The plaintiff must only give the defendant fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved.”); See, Utah R. Civ. P. 8(a).

For example, Party A files a petition to modify custody on Jan. 1, 2015. On May 1, 2015, events occur relevant to the U.C.J.A. § 4-903 factors. Is Party A required to seek leave of the court to amend the initial petition to outline the allegations relevant to the May 1 incident in order to discuss the incident during trial? What if the pertinent documents regarding the incident were disclosed to the other party in pretrial disclosures?

The required pleading standard in Utah is to “give the defendant fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved.”

The issue, however, isn’t whether leave should be given to Party A to amend their petition – this is a given. The issue is whether Party A would be legally stopped from raising the supplemental transaction or occurrence at trial or post-trial if he or she did not amend the petition.

Following are some guidelines on amending petitions:

  • Utah R. Civ. P. 15(b) requires the moving party to show “prejudice” in order to eliminate the new evidence, and if prejudice is shown the court “shall grant a continuance” if necessary to “meet such evidence.”
  • Utah R. Civ. P. 15(d) states, “Upon motion of a party the court may … permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.”


The purpose of Utah R. Civ. P. 15(d) is to bring the action up to date. But what is absent from Utah jurisprudence is whether a party is legally precluded from bringing post-petition factual allegations due to failure to plead them by amendment, even where no new claim is added.

Unlike other civil issues, family law cases are not litigated in a vacuum. Rather, family law cases are ongoing in which the parties interact with each other and their children on an ongoing basis. Material facts regarding the issue of custody, for example, will continue to compile during the litigation stage.

The aforementioned rule espousing due process appears to be in conflict with Utah’s notice pleading standards. Utah pleading standards don’t require every single factual allegation related to the claim to be put down in the complaint or petition. Indeed, such a rule would be impossible, so mandating amendment to add post-petition allegations appears to be at odds with the rule.

So, when does a party’s due process rights give way to the best interests of the children when factual issues relevant to custody are never required to be pled with particularly?

To date, no Utah court of review has required parties in a family law case to amend his or her pleading to supplement it with all the postpetition facts relevant to custody or any family law related topic. Until this occurs, courts should take great caution when limiting factual claims to those specifically alleged in a petition or those that occurred before the petition was filed, especially when the information is provided in timely pretrial disclosures that destroy any lack of notice issue.

A cheeky “failure to plead” argument sidesteps the real issue of whether the party had “fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved.” Absent some legitimate prejudice, which is rarely shown, the party asserting a heightened pleading standard should fail lest severe harm be done regarding the ultimate issue of whether a custody change is in the child’s best interests; after all, if material factual issues are not allowed to be raised it is not the litigants who stand to be harmed per se, but the children.

For more information on due process in family law, visit or call (801) 475-0123.