Child Custody Orders Can Be Changed in Los Angeles and Orange County Courts
Child custody orders can be changed by making a written request to the Court that issued the original child custody order. This is called a Request for Orders and is made using the FL-300 Request for Orders form. This is the same form one uses to obtain an initial child custody order.
CUSTODY MODIFICATIONS DURING THE DIVORCE PROCESS
When a couple first divorces, a Court will apply the best interests of the child analysis as set out in Family Code Section 3111. In determining the best interests of the child, the Court is primarily concerned with the health, safety, and welfare of the minor child. The “default” position the Court takes is that close and continuing contact with both parents is in a child’s best interests.
Remember the Court wants you and your spouse to decide custody yourself. Only if the parties cannot agree will the Court impose a custody order. See the article on how Courts determine custody here.
If the facts support it and you make a formal motion (A Request for Orders) to the court for a modification, you can have the court issue a custody modification. The initial custody order and any subsequent custody orders which issue during the year or so it takes to complete the divorce are called “temporary custody orders.” If the parents cannot agree on custody, the Court will make a determination of what is in the child’s best interest. If one parent later desires a change, the parent desiring a change must present evidence proving that sufficient grounds exist to make the change and that a change in custody is in the child’s best interest.
CUSTODY MODIFICATIONS AFTER THE JUDGMENT OF DIVORCE IS ISSUED
After the judgment of divorce is issued, the best interest rule still guides the court for modest modifications of parenting time, but the rules change a bit if one parent wants to make a significant change to custody.
Final Custody Orders and Temporary Custody Orders
In all judgments of divorce where there are minor children, the court will issue a custody order. Most custody orders that are part of divorce judgments are considered to be “final custody orders.” The phrase is misleading. The court has jurisdiction to change custody until the children are 18. A final custody order is different from a temporary custody order in that a significant change of circumstances is required to obtain a significant modification of custody.
In Montenegro v. Diaz (2001) 26 C4th 256, the Court clarified when a stricter standard should be applied. The Court found that if a custody order is “final,” the Court should apply a stricter standard to help preserve continuity and stability in custodial arrangements.
If a custody order is final, the Court will require a showing of a significant change of circumstances so affecting the child that modification of custody is necessary to the child’s welfare. This is known as the “changed circumstances” test. Only if this requirement is met will the Court move on to the best interests of the child analysis.
How Are Final Custody Orders Obtained?
A final custody order can occur in two ways:
1) A stipulated custody order where there is a “clear indication the parties intended the custody order to be a “final order.”
2) When the Court makes a judicial decree after the issue of custody has been litigated in trial or in a post-judgment modification.
For scenario 1), language in a Marital Settlement Agreement should state that the custody language is final. Such language may read as follows:
“The parties agree the child custody, visitation and sharing provisions of this Agreement are in the best interests of the minor children. They further agree that the child custody provisions of this Agreement are deemed to be a final judicial custody determination under Montenegro v. Diaz (2001) 26 Cal.4th 249.”
For scenario 2), the court’s order after trial will include language indicating the custody order is a final judicial custody order.
There are several instances where a Court will make a judicial decree after litigation and the decree will not be considered a final custody order. As noted above any custodial determination made at a hearing requesting temporary orders during the divorce is not considered a final order. (Marriage of Lewin (1986) 186 CA3d 1482.) Nor, is a custody order issued after a domestic violence restraining order hearing.
What about just changing the visitation schedule?
If a party is merely trying to obtain a modest change, such as a change in parenting time, after the divorce judgment the Court will apply the best interests of the children test.
To obtain a modification during the divorce or after the judgment, the moving party needs to provide facts that support his or her contention that it’s in the child’s best interest to modify the custody order. Read about how to obtain what you desire in a family law court hearing here.