Requesting a modification of child custody and/or visitation orders in California

Requesting a modification of child custody and/or visitation orders in California

The topic of this blog post is the issues involved in requesting the Court to modify the child custody and/or visitation orders in California.  Several statutes and cases outline the standards used and the burden of proof on the moving party.

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.

To put it another way, in child custody/visitation matters (just as with child support,) the family law court has continuing jurisdiction and the matter thus remains pending even after entry of the underlying dissolution (or legal separation or nullity) judgment.  Marriage of Kreiss (2004) 122 Cal.App. 4th 1082, 1085.

Although the statutes governing custody adjudications only requires courts to ascertain the child’s best interest, the best interest standard has an added twist once a “final” judicial custody determination is in place: A party seeking to modify a “permanent” custody order can do so only upon a showing of a significant change of circumstances so affecting the child that modification is essential to the child’s welfare. Absent such a showing, any modification would be an abuse of discretion as denying the child the benefits of a stable home environment and thus would not be in his or her best interest. Montenegro v. Diaz (2001) 26 Cal. 4th 249, 256, Marriage of LaMusga (2004) 32 Cal. 4th 1072, 1088.

Indeed, the trial court’s exercise of discretion is far more limited when it effects a change in existing custody orders than when it makes an initial custody decision. Appellate courts are “less reluctant to find an abuse of discretion when custody is changed than when it is originally awarded, and reversals of such orders have not been uncommon.”  Marriage of McLoren (1988) 202 Cal.App. 3d 108, 113,   modification giving W joint legal custody (where original order gave H sole legal and physical custody) reversed because W failed to present proof of change of circumstances affecting children’s welfare]

The “changed circumstances” rule is an adjunct of the statutory “best interests” test for determining child custody. See Family Code §§  3011, 3040(b). It furthers the paramount goal of preserving the need for continuity and stability in custody arrangements, unless some significant change in circumstances indicates a different arrangement would be in the child’s best interest. Montenegro v. Diaz, supra, 26 Cal. 4th at 256, Burchard v. Garay (1986) 42 Cal. 3d 531, 535, see Marriage of Brown & Yana (2006) 37 Cal. 4th 947, 956.

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.

The changed circumstances rule is triggered only after a “final” or “permanent” custody adjudication. The ordinary best interest standard, without the additional changed circumstances burden of proof, applies when the court makes an initial custody adjudication and when it adjudicates custody following any temporary or interim custody order. Montenegro v. Diaz, supra 26 Cal. 4th at 256, 257;  Marriage of Burgess (1996) 13 Cal. 4th 25, 29, 37.

So as not to discourage parties from entering 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 thus against application of the changed circumstances rule in subsequent proceedings to modify the stipulated order.

All indication is that, where the issue is disputed, a stipulated order will be deemed to be temporary or interim in nature unless it clearly states it is a final judgment as to custody or words to that effect. See Montenegro v. Diaz, supra, 26 Cal. 4th at 259, neither underlying stipulations nor court’s minute order contained “clear, affirmative indication” that parties intended stipulated orders to be final judicial custody determinations; Marriage of Rose & Richardson (2002) 102 Cal. App. 4th 941, 952, (citing text).

A stipulated dissolution judgment awarded the parties’ joint legal custody, mother “primary physical custody” and father “reasonable  visitation.” The judgment also recited, however, that “in the event the parties are unable to resolve their custody and visitation issues, they shall agree upon a therapist or counselor to assist them. If after meeting with a therapist or counselor, the parties remain unable to resolve their differences, they shall make an appointment with the

Conciliation Court prior to either party filing a  request with the Court for a hearing on the issue.” Despite other boilerplate language in the judgment stating it was intended to be a final settlement of the parties’ rights and obligations, there was no “clear, affirmative indication” that they intended the stipulated custody provision to be a final judicial custody determination. Quite the contrary, the stipulated language warranted “the opposite conclusion the parents disagreed and were attempting to resolve the custody and visitation issues.” Marriage of Rose & Richardson, supra, 102 Cal. App 4th at 951, 952.

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. Enrique M. v. Angelina V. (2004) 121 Cal. App. 4th 1371, 1379, 1380;  Marriage of Birnbaum (1989) 211 Cal. App. 3d 1508, 1513.

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. Marriage of Birnbaum, supra, 211 Cal. App. 3d at 1518.

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.  Marriage of Lucio (2008) 161 Cal. App. 4th 1068, 1077 1080, (citing text) (collecting cases) noncustodial parent who had supervised visitation not required to show changed circumstances in support of request for unmonitored visits and additional visitation time not amounting to “de facto joint custody”.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

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