The Los Angeles family law attorneys at Berenji Divorce & Family Law Group can answer all your child custody modification questions. Call us for a case evaluation.
Can a Child Visitation or Custody Order be Modified?
Yes. California Family Code sections 3022, 3087, and 3088 provide that child custody and visitation orders may be modified while the child is still a minor and whenever modification is “necessary or proper” and in the child’s best interest.
Because the State of California has a strong interest in the welfare of children, parents cannot agree in advance that a child custody or visitation order may not be modified. Family court judges will not enforce such an agreement.
What Is the Procedure for Modifying Custody and/or Visitation Orders?
One or both parents may file a motion to modify a custody order. They may be required to try to work things out themselves with the help of a mediator before a court hearing is scheduled. Parents may be required to attend an orientation session before mediation.
To make sure they are not forgetting anything, parents may wish to fill out the Child Custody and Visitation Application Attachment. This optional form covers details like:
- where the children will spend which weekends and weekdays
- specific times of day for visitation
- any restrictions on visitation – for example, a child might not be permitted to visit when a parent’s girlfriend or boyfriend with a history of violence or substance abuse is present
- who will supervise visitation, if applicable
- who will provide transportation to the place of visitation or exchange
- whether the parents will come face-to-face when exchanging the children
- whether a parent will need permission from the other parent to take a child out of the county, out of the state, out of the country, or to a specified location
- whether the child is at risk of being abducted
- how a child will spend the holidays
The parent requesting the change will need to explain why the change is necessary. The parent may propose a specific parenting plan for the judge to consider.
At the hearing, the other parent may simply oppose any change or may suggest a different change.
Once the judge makes a decision, the judge will sign a court order either granting or denying the requested change. In some courts, the clerk of the court or another staff member will prepare this order for the judge. In other courts the person requesting the hearing will be responsible for preparing the order for signature.
What are Grounds for Modification?
A custody order may be modified based on a significant “change in circumstances.”
As children grow older, their needs and activities will normally change. As a result, parents may wish to modify a custody order in response to these changes every few years.
In ruling on a request for modification, a judge will focus on the best interests of children – not necessarily the best interest of the parent. Custody and visitation arrangements will only be changed if those changes are good for the children.
What Do I Have to Establish?
As discussed above, you will need to show a significant change in circumstances. Also, the change – or the response to the change – must affect the children, not just the parents.
The person seeking the change has the burden of presenting evidence to show that the change of circumstances warrants a change in custody or visitation. Simply saying “it would be better for the children” generally won’t be sufficient.
Following are some examples of changes in circumstances that may justify changes in custody or visitation:
- The death of the parent with custody of the child will automatically make the other parent entitled to sole custody, unless it’s shown by clear and convincing evidence that would be bad for the child.
- The relocation of a non-custodial parent may be grounds to make visitation longer but less frequent.
- The relocation of a custodial parent may result in that parent being required to pay travel costs so that the child can continue to see the other parent on a regular basis.
- If a custodial parent wants to move away, the court can consider whether the child – especially a teenager – should stay with the other parent in order to continue at the same school and stay involved with the same friends and activities.
- If one parent frustrates visitation and even communications between the child and the other parent, a court may order a change in custody.
- A court can take into account the preferences of a child for a change in custody and visitation, especially when the child is older but even when a child is as young as seven or eight.
What If I don’t Want Custody or Visitation Modified?
If you feel that a change in custody or visitation is not justified and would not be good for your children, you can make your feelings known at the hearing before the judge. To make a strong case, you should be prepared to present evidence, including the testimony of witnesses familiar with your family situation.
For example, you may wish to call as a witness a psychologist or therapist who works with your child, other family members, or someone from your child’s school.
Can We Just Agree to Change Custody and/or Visitation?
Sure. In fact, it will probably be better for the children if the parents can work things out on their own.
If you need help working out an agreement, you may want to talk to a trained family mediator or facilitator. The mediator or facilitator can also help you write up what you’ve agreed to so that you can present it to a judge to sign.
You can find out more about custody mediation here.
You can find a directory of family law facilitators for your county here.
If parents agree on the modification, they simply need to submit their agreement to the court and get the judge to sign it. Once the agreement is signed, it will need to be filed with the court.
However, often times parents have a difficult time resolving custody and/or visitation issues. If you are struggling to resolve these issues, or if your ex-spouse has already hired an attorney, call our Los Angeles office to speak with a qualified family law attorney immediately.
How Can I Learn More?
You can learn more about custody orders and other divorce and family law issues are on our website.
You can learn more about changing a custody order by visiting this page sponsored by The Judicial Branch of California.
Start Your Consultation
If you are having custody problems after a divorce, you may need to request that the court modify the existing custody order. Call Berenji Divorce & Family Law Group today for a case evaluation. Our skilled attorneys will review your case and discuss your best possible options.
