MODIFYING LEGAL CUSTODY IN CALIFORNIA

When the legal custody order should change

Modifying Legal Custody in California

Modifying legal custody orders is not as common as modifying physical custody or parenting time. Here, we will generally discuss how California family courts look at modification of legal custody. We hope you enjoy this article. At the article's end, we will provide you with additional reading on legal custody. 

Modifying Legal Custody

First, 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.

Does that mean every judgment is a final custody determination? No. There are situations where even a judgment may not be a final custody determination. We won't go into that level of detail here because it doesn't really help 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 that states the court may, during the pendency of the proceeding or any time thereafter, make an order for the custody of a child during minority that seems necessary or proper.

If that seems somewhat vague to you, you're right. You will find 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 who seeks such a legal custody change should be prepared to provide evidence in support of that.

So 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” in support of 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.

And what happens 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 “best interest” is focused on the child's health, education and general welfare. We also like to throw safety in there because we think that is pretty important when assessing what is best for a child.

What are some 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 parent and simply refuses to share in the responsibility and coparent. 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 coparent with someone like that right?
    • This situation comes up a lot. And what we typically see is one parent finally has enough and states 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 successfully completed recovery, has been sober for an extended period of time and is now ready to become actively involved in his or her children's life.
    • Courts are sympathetic to parents who achieve sobriety and are ready to become actively involved with the children. That is not to say they roll out the red carpet and invite those parents back to court but 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 modification of legal custody. We offer you additional reading with the links below, two of which are also on the subject of legal custody and one is our comprehensive guide on California child custody laws. 

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