"How do I modify child custody in California?" The question nags at parents who are unhappy with the current child custody order and believe a change is necessary.
Although we talk about child custody cases and procedures quite a bit on the pages of this website and we do have one page dedicated only to California child custody laws, I thought it would be helpful to write this article and explain the specific rules that pertain to modification. That way, you too can understand how the family court modifies custody.
How do divorce attorneys modify a "de facto" custody order?
Your first question may be, "Robert, what is a de facto custody order?" Simply put, it's the status quo. It is what you and the other parent have been doing without a court order. When you go to court and ask for a custody determination, you may not always ask for a modification of a court order. Instead, you may want to say to the court, or have your divorce attorney argue, that you and the other parent have been doing X (X is whatever your custody arrangement has been) but you now want to do Y (Y is what you want the custody arrangement to be).
This is not a modification proceeding but it is you seeking a modification of what the child has been used to and courts won't always make the change unless they believe it is in the child's best interest…and there is your answer. If you want the court to order custody to be different than what you and the other parent have been doing, all your divorce attorney has to show is that it is in the child's best interest to make that order.
How do divorce attorneys modify a temporary child custody order?
A temporary child custody order is the order in place until the O.C. Family Court has a final trial on the custody issues or you and the other parent agree to final orders. But what happens when you want to modify the temporary order? What do you have to show to make joint custody sole or visa versa or change the visitation plan? Since you only have temporary orders, all you have to show is that it is in the child's best interest to make that change.
How is a final child custody order modified?
When there is a "final judicial custody determination", the burden to modify custody becomes greater. This is where your Orange County divorce attorney has to sit down with you and really get to the details of why you think a custody modification is necessary.
What is a final judicial custody determination? The most common example is when there was a contested custody hearing (generally at a trial) and the Family Court made final rulings that are not intended to be temporary. However, it is not mandatory that there be a contested hearing.
The key is "intent".
Two parents can agree on a final custody order so long as they intended it to be final and not temporary. However, if there is ambiguity as to what the intent was, then the family court assumes you did not intend the agreement to be a final one.
If there is a final order, then the parent who seeks the modification must show a significant change of circumstances. The parent must prove that these circumstances have such an impact on the child that it is essential the custody orders be modified.
This "significant change of circumstances" rule exists to avoid upsetting the stability of the child's living arrangements. Parents are not permitted to modify custody at a whim. There must be compelling evidence of the need for modification. That is the only way a modification can being to reach the "best interest" standard of the California Family Code.
For those interested, the leading case on point on this issue is called Montenegro v. Diaz. You can click on the link and read it. That is why Orange County divorce attorneys and family law judges call final custody orders "Montenegro orders."
What if you want your divorce attorney to only modify the parenting time and not custody?
The "significant change of circumstances" rule only applies to situations where custody is being modified. Legal custody. Physical custody. Those are the two types of custody that exist. Either can be sole or joint. If a parent seeks to change sole to joint or visa versa, then the change of circumstances rules applies. However, if the parent just wants to change "timeshare" (adding time or taking it away) and doesn't want to change the custody labels, the standard for such a modification is only best interest. There is no need to show a significant change of circumstances.
"Do I need a divorce attorney to help me with a child custody modification?"
Most divorce attorneys would tell you that you must hire them to modify custody. I don't believe that. I think every case depends on its own facts. If you have a very similar modification and you are familiar with the court process, it is possible you could handle the custody modification on your own or with minimal help from our experienced divorce attorneys. If it is not a simple matter, you will need us more.
How do you know which situations applies to you?
That is easy. Contact us. Our divorce attorneys are ready to help you. We offer an affordable initial consultation for exactly this reason.