Modifying child custody and visitation orders in California

Modifying child custody and visitation orders in California is the topic of this blog post.  

There are several statutes and cases that outline the standards used and the burden of proof that must be met by the party moving for modification.

California law states that child custody and visitation orders generally are modifiable throughout the child's minority whenever the court finds a modification is "necessary or proper" in the child's best interests. See Family Code § 3022.

And at least one California Court of Appeal has stated that a family law court has continuing jurisdiction over child custody and visitation matters such that they remain pending even after entry of a dissolution or legal separation or nullity judgment in California.

Although the statutes governing custody adjudications only require courts to ascertain the child's best interest, the best interest standard takes on a new meaning once a "final" judicial custody determination is in place: A party seeking to modify a "permanent" custody order can do so only it they make a sufficient showing of a significant change of circumstances that affect the child to such a degree that modification is essential to the child's welfare.  

While the party seeking a modification of child custody must make a showing of changed circumstances in many cases, there are exceptions to this rule that should be carefully considered and reviewed by any party contemplating requesting that the Court modify a child custody and/or visitation orders in California.

For instance the changed circumstances rule is triggered only after a "final" or "permanent" custody adjudication. If a custody order is only an interim or temporary order than the ordinary best interest standard applies.

In order to encourage parties to enter into custody stipulations, any doubts about whether the parties intended a stipulated custody order to be a "final" or "permanent" custody adjudication will be resolved against finality and against application of the changed circumstances rule in any subsequent proceedings to modify the stipulated order.

Any stipulated order will be considered to be temporary or interim in nature unless the stipulated order clearly states that it is a final judgment as to the issue of custody.

As to physical custody, the changed circumstances rule applies when the modification request seeks to remove custody from one parent and give it to the other. By contrast, no change of circumstances need be shown as a prerequisite to altering only the co-parenting schedule (the amount of time the child spends in each parent's household) under a joint custody order. Proposed changes in parenting time are "not on a par with a request to change physical custody from sole to joint custody, or vice versa"; the only standard the moving parent must meet in such cases is the child's best interest.

So long as the joint custody award itself is not being changed, the court has very broad discretion to revise the "coparenting residential arrangement" where the parents are unable to agree and call upon the court to intervene. 

And the changed circumstances rule does not apply when a parent requests only a modification of the visitation arrangement (whether in a joint custody or sole custody situation). Because such a modification does not change "custody," the trial court considers a visitation modification solely under the child's best interests standard. 

Attorneys or parties in California that would like to view a portion of a sample 13 page motion for modification of child custody and visitation containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can see below.

   Sample Motion to Modify Child Custody and Visitation in California by Stan Burman

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.