Child Custody and Visitation Modifications Post Divorce
After divorce in California, child custody and visitation modifications may become necessary. After all, circumstances can change, financial security can shift, and it is not unusual for families to readjust as children grow and dynamics evolve. For all of these reasons, it is important to understand how to modify your existing California child custody and visitation arrangement.
There is a difference between the modification of child custody and the modification of child visitation (or the parenting plan)?
Child Custody modification refers to the change of the status of either legal or physical custody of the children, when one or both parents request a change. Legal custody refers to the parents ability to make decisions regarding the medical, education, and general welfare of the child; physical custody refers to which parent has physical timeshare with the child – the primary physical custodian parent’s home will usually determine the location for the child’s school.
A parent may want to modify a child visitation orders as the child’s needs, activities, or interest evolve as the child gets older. Sometimes, the needs and activities of the parent changes, such as if the parent gets a new partner, job, or home. All of these changes can warrant a modification of a child visitation order; some parents find the need to make modifications every 2 to 3 years when the child is younger; the changes are less when the child is older. If both parents agree on the changes to be made, they can change the order by using a stipulation, or an agreement. If the parents cannot agree, then one of the parents will file for a modification of current child custody and visitation order.
To ask a court to hear your request for modification, you will first need to fill out a Request for Order form.
It is optional to fill out the Child Custody and Visitation Application Attachment, which can help you ensure you include everything you need in your request. These forms provide you a place to explain why you think a modification is necessary; although, attaching a declaration and fully explaining the facts of your situation is much more compelling. Have a family law attorney review your forms to make sure you have filled them out properly. Make sure to make at least 2 copies of all forms, file all forms with the court clerk, who will give you a court date. After you serve the other parent with the appropriate forms, file your proof of service with the court. Any additional questions about the process of child custody modification should be directed to your family law attorney. Below, common questions and issues are resolved:
Will the court automatically approve my modification request?
No. To qualify for a child custody modification, you must show the court a few things; first you must show there has been a “substantial change in circumstances.” An example of a substantial change in circumstances might be a geographical move; if the custodial parent is moving, and the move might seriously disrupt the child’s life routine, it may justify a modification of the custody order.
Another substantial change could be a lifestyle change. If a parent has a significant lifestyle change that harms the child, then custody orders could be modified. For instance, if a custodial parent begins working nights and leaves the child alone frequently, or if one of the parents begins abusing drugs or alcohol and endangers the child, then that would justify a child custody modification.
Additionally, you need to show that your request is in the “best interest of the child.” The Court makes orders based on the best interest of the child, so each of your requests needs to keep your child’s best interest in mind, first and foremost. Keep in mind that qualifying circumstances vary depending on the judge deciding the case.
What Can I Ask for in a Modification Request?
If you are asking for a modification of Visitation, you can ask the court to arrange a new Parenting Plan. The Parenting Plan can include major modifications or minor modifications. If you are asking for a modification of Child Custody, a major modification may be a request for a switch of custodial parents, or requesting monitored visits. A minor modification is a small change, such as requesting different scheduled visit days of the week or weekends of the month. You can ask for any changes that are in your child’s best interests.
How Do I Prove the Need for a Minor Modification?
Unlike a request for child custody modification, qualifying for a minor modification does not require a substantial change in circumstances, if it does not change custody between the parents. A modification of visitation hours for the child, may be made based on the best interest of the child, without showing any change in circumstances. (IRMO Lucio)
How Do I Prove the Need for a Major Modification?
The first step in getting your request granted is proving your change in circumstance. A major modification can be granted if the Court sees that a significant change has occurred, such that a new order is necessary to accommodate the child’s new needs based on the changes. If your reasoning is approved, there may be new orders granted or there may be an order for a trial, where you will prove if there has been a significant change, or substantial change of circumstances, since the Parenting Plan was arranged. It is at trial where you will be able to present more testimony and evidence to support your argument.
I Do Not Want to Change the Order, but I’m Having Problems With the Other Parent
If you are satisfied with your child custody order, but are having other problems, you may want to file for contempt or clarification. For instance, if you are unsure of some terms on your current order, or the other parent is not following the Parenting Plan, you may not need to file for child custody modification. Or, if you need to change the amount of child support paid, you can file for “Modification of Child Support.” Other requests include dates for vacation or permission to leave the state with your child.
I Want to Move with My Child. Should I File for Modification?
To move out of state with the child, you most likely must first obtain court permission. If you do not receive permission, the court may sanction the custodial parent with orders of contempt and could switch the custody orders to the other parent. If both parents consent to the move, a move-away order can be signed by both parties, which a judge will approve. If the parties cannot agree, the parent who wants to move can file for a child custody modification order. Approval of the move depends on whether the court finds the relocation is in the best interest of the child based on the factors under IRMO LaMusga, and if the move significantly disrupts the current custody terms.
Contact the Law Office of Heath L. Baker Today!
For more information of child custody modification laws, child visitation, or move away orders, you can visit the website for the Judicial Branch of California. It is always a good idea to consult with an experienced family law firm for additional guidance and assistance. The Law Office of Heath L. Baker knows that child custody cases can be some of the most difficult and confusing issues that arise during a divorce, and is dedicated to resolving your concerns.
Consult with your family law attorney at the Law Office of Heath L. Baker to find out how to form your case for modification, and for any additional questions you may have.