Many Californians view the final order ending their marriage as the permanent conclusion to a long and painful journey. The final order and each of its terms are often considered to be the last gasp of a dead marriage. However, all divorced parents need to keep in mind that life is uncertain and that a change in circumstances can lead to a modification of the order ending the marriage.
One of the provisions most frequently modified is the order establishing child custody. After living separate lives for months or even years, the parents may realize that the original order for child custody is not or will not be working. In such cases, one or both parents may decide to seek a court-ordered modification of the existing order.
The basics
The party seeking the modification of the existing child custody order has the burden of proving the occurrence of a “substantial change in circumstances” since the date of the most recent order. Some examples of changed circumstances include a significant change in the income of either parent, a significant move by the custodial parent, the incarceration of one of the parents, or the military deployment of one or both parents. Other changes, such as a heavy dependence on alcohol or drugs, may compel the other parent to seek a modification of custody.
Most California judges will accept a custody agreement signed by both parents, but if the parents cannot agree to the terms of the modification, the matter must be presented in a formal motion to the court that has jurisdiction over the matter—usually the court in which the divorce case was heard.
The court will set a date for presentation of evidence. After hearing the evidence submitted by both parties, the court will consider the arguments of counsel and the applicable law. A decision is usually rendered in a matter of weeks, but some cases could take a month or more to produce an order.
The best interests of the child
California law requires the judge to consider whether and how the “substantial change in circumstances” and the proposed modification will affect the “best interests of the child.” This test trumps the personal interest or wishes of the parents. The factors that compose the best interest of the child include the following:
- The health, safety and welfare of the child
- Whether one parent has a history of abuse of the child
- Nature and amount of contact with each parent
- Any use of controlled substances
- Any other factors considered by the judge to be relevant to the decision
Legal advice from an education law attorney
The benefits of having a trained and skilled advocate present an argument either in favor or opposed to the motion cannot be overstated.