Modifying Legal Custody in California

When the legal custody order should change and why

How do you modify legal custody from joint to sole or sole to joint in California?

Modifying legal custody orders is not as common as modifying physical custody or parenting time.

Here, we will discuss how California family courts view the modification of legal custody. We hope you enjoy this article. At the end of the article, we will provide additional reading on legal custody.

It is important to know whether the legal custody order a parent seeks to modify is a temporary order or a final judicial determination. A temporary order is typically the order while the divorce or parentage case is pending. Put another way, the temporary order is before the judgment. A final order is typically the judgment or sometimes the modification that happened after the judgment.

- B. Robert Farzad

Does that mean every judgment is a final custody determination?

No. In some situations, even a judgment may not be a final custody determination. We won't go into that detail here because it doesn't help you understand modification proceedings.

If a parent seeks to modify a temporary legal custody order, he or she needs to show that the modification is necessary or proper. The terms necessary and proper come from Family Code 3022. The term means the court may, during the pendency of the proceeding or any time thereafter, make an order for the custody of a child during the child's minority that seems necessary or proper.

If that seems somewhat vague to you, you're right. Most California child custody laws give the court broad "discretion" to make orders the court deems proper.

Our experience has been a parent who wants to modify legal custody, even if it is a temporary order, better be ready to explain what changes occurred that would justify the modification.

Although a parent may make a legal argument that he or she does not need to show a significant change in circumstances (we discuss this more below), the practical reality is a court will probably not change joint legal custody to sole legal custody or vice a versa unless there's a good reason for it.

And since the court focuses primarily on the child's best interest, a parent seeking such a legal custody change should be prepared to provide evidence supporting that.

What happens if there has already been a final judicial determination and a parent wants to modify legal custody?

We let the cat out of the bag on that one. The parent must show a "significant change of circumstances" supporting his or her modification request. This significant change of circumstance requirement exists for modifying legal custody (as you will learn, the same rule applies to modifying physical custody) to avoid a court's time wasted by parents who want to have a second bite at the apple because they did not like the first ruling or they do not like their current agreement but have no basis to change it.

What if a parent can show there has been a significant change of circumstances?

Does that automatically mean the judge will modify legal custody? No. The judge still has to conduct a "best interest" analysis. Right about now, we could bore you to death by quoting one Family Code after another, but we are not going to do that to you. Just know that "best interest" is focused on the child's health, education, and general welfare. We also like throwing safety in there because we think that is important when assessing what is best for a child.

What are common scenarios where a parent may seek a modification of legal custody?

Here are a couple we often see.

  • Example number 1: the parents currently share joint legal custody on every issue, but one parent has been exceedingly difficult with the other and simply refuses to share in the responsibility and co-parent. The parent who engages in this misconduct will not agree to reasonable requests that concern legal custody. These may relate to educational issues, medical issues, etc. Hard to co-parent with someone like that, right?
    • This situation comes up a lot. We typically see that one parent finally has enough and states that the court should modify legal custody and take the consent provision away so that the parent who does not engage in the misconduct can have final decision-making authority.
  • Example number 2: one parent currently has sole legal custody because the other parent suffered from substance abuse issues and was not fit to be involved in the decision-making process at that time. However, the parent with the addiction issues completed recovery, has been sober for an extended period, and is now ready to become actively involved in his or her children's lives.
    • Courts are sympathetic to parents who achieve sobriety and are ready to become actively involved with their children. That is not to say they roll out the red carpet and invite those parents back to court. Still, if the parent can show true progress and genuine readiness to act consistent with the children's best interest, it is not unusual for a court to allow the parent to become more involved in the children's rights and responsibilities.

Was this article on modifying legal custody helpful?

We hope this page helped you better understand the modification of legal custody. We offer you additional reading with the links below, two of which are also on legal custody, and one is our comprehensive guide on California child custody laws.

We are available for an affordable strategy session for family law cases in any of the seven Southern California counties.