Modifying Physical Custody in California
When is the right time and what must a parent prove?
How do you modify physical custody?
Modifying physical custody is very similar to modifying legal custody. There are two ways to do it - by agreement or by a contested hearing. That is pretty much how everything in family law works. Let's discuss these two options.
If the parents want to modify physical custody and, more importantly, parenting time by agreement, they typically enter into a stipulation to do it. The word stipulation is a fancy way of saying agreement.
Stipulations can also become court orders in which case are called, you guessed it, stipulation and order. Please do not try the draft one of these on your own. If I had a nickel for every time I had to clean up a stipulation and order parents try to handle on their own, I would have a lot of nickels.
If the parents cannot agree, one of them will file a request for order
In the old days this was called an "order to show cause." A request for order is exactly what it sounds like - a request for the court to make orders. This document which is a series of forms and a written declaration once filed with the court causes the court to set a court date.
The court will also set a mediation date before the court date for the parents to attempt resolution. The mediation is a session held with a court employee who is typically a licensed social worker. These social workers are trained to assist parents to come to a resolution. If the parents are unable to resolve the issues at mediation, they proceed to hearing.
The request for order procedure is not as simple as filing these documents with the court and getting what you want
If a parent seeks a significant change in parenting time that would be the equivalent of changing joint physical custody to sole physical custody or vice versa, they generally have to show a significant change of circumstances since the last order to justify the modification. If the parent who seeks the modification shows this change, then the court is supposed to conduct a best interest of the children analysis to determine if it makes sense to actually make the modification.
Small changes to parenting time that do not amount to an actual change in custody do not require a significant change of circumstances showing. In such situations, the best interest analysis is enough.
You are not going to figure out on your own whether what you seek is a significant enough change to trigger one standard versus another. There are lawyers out there who do not understand the distinction. Please always seek the advice of an experienced family law attorney.
Assuming the request for order was prepared properly, we then get to the issue of service
This law has evolved over the years and as of the date we write this in 2017, Family Code 215 has a very specific requirement for serving post-judgment modifications of custody. This post-judgment modification procedure means you cannot simply drop the modification request in the mail and forget about it. It is beyond the scope of this page to delve into Family Code 215 and we cover that in more detail in an article dedicated to the subject.
One last note - the changed circumstances rule we mentioned above only applies to final child custody adjudications. If the physical custody orders are still temporary orders, a custody modification does not require a showing of a significant change circumstances. The court can skip directly to the best interest analysis.
Check out the links below for additional reading on California physical custody laws.