Modifying child custody and visitation in California is the topic of this blog post.
Several California statutes and California Supreme Court and Court of Appeal cases outline the standards used and the burden of proof on the party seeking an order modifying child custody and visitation in California.
Laws governing modifying child custody and visitation in California.
The law in California 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.
In California, in child custody/visitation matters and 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.
In at least two published cases the California Supreme Court has stated that 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.
In California, 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.
Both the California Supreme Court and Courts of Appeal have stated that 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.
While the party seeking an order modifying child custody and visitation in California 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 child custody and/or visitation orders in California.
For example the changed circumstances rule is triggered only after what is known as a “final” or “permanent” custody adjudication. The ordinary best interest standard, without the additional changed circumstances burden of proof applies when the court makes any initial custody adjudication, and when it adjudicates custody following any temporary or interim custody
However as the policy is 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. The order must affirmatively state that it is a final order.
In one case, 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.”
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.
Despite what some people think, 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.
Sample points and authorities in support of modifying child custody and visitation in California.
Attorneys or parties in California that would like to view a portion of a sample 13 page points and authorities in support of a request for an order modifying child custody and visitation in California 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.
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The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. He believes in Father’s Rights as he has seen first-hand the incredible bias against fathers in the family law courts in California. He is currently working on creating digital products that will assist fathers both in California and throughout the United States to represent themselves without an attorney in Court regarding custody and support issues.
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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.