In short, yes, you can modify your custody order IF you can satisfy the required showing. In California, if you wish to modify your custody order, what you will need to show depends on whether you have a temporary or permanent custody order.
Temporary vs. Permanent
A temporary custody order is an order made during the pendency of the divorce or paternity proceedings, before a final Judgment is entered. A temporary order can be modified by a subsequent temporary order, or it can be modified by a final order, such as a Judgment.
A permanent custody order is a final judicial termination of custody. Parties can stipulate to a final custody order in a Marital Settlement Agreement, but such an agreement must include language that states the custody order is final. A custody order is also permanent if the issue of custody has been litigated in trial and the Court makes a judicial decree after trial. A post-judgment modification of custody is also considered a permanent order.
A custody order includes a determination of legal custody, physical custody and a visitation schedule. A party can have sole legal custody or the parties can share joint legal custody. Legal custody determines which parent has the right and responsibility to make decisions relating to the health, education, and welfare of the minor child. A party can also have sole physical custody or the parents can share joint physical custody. Physical custody determines which parent the minor child will reside with and be under the supervision of, subject to visitation with the non-custodial parent. Visitation is the actual parenting schedule and the amount of time each parent spends with the child.
Best Interest of Child – Necessary Showing
For all requests to modify custody, a party must show the Court why changing the custody order would be in the child’s best interest. This applies to temporary and permanent orders, whether you want to chance legal or physical custody from joint to sole or vice versa, or whether you just want to change the visitation schedule. Every custody order must be made in the child’s best interests.
What exactly does the Court consider in determining best interest? California Family Code Section 3011 requires the court to consider the child’s health, safety and welfare; any history of physical abuse; any history of habitual and continual drug or alcohol abuse; and the nature and amount of contact with both parents. Courts also take into consideration the paramount need for continuity and stability in custody arrangements.
How to Modify a Temporary Custody Order
To modify a temporary custody order, you need to show the Court how the proposed change is in the child’s best interests, as described in detail above. This showing applies if you want to change legal or physical custody, from joint to sole or vice versa, or if you just want to change the visitation schedule.
For example, Mother files for Divorce and files a motion to request sole legal custody, sole physical custody with alternating weekend visits to Father. Mother has the burden of showing why her requested relief is in the child’s best interests. When the Judge rules on Mother’s motion, that custody order is a temporary custody order. The order was made during the pendency of the divorce and before a Judgment was entered. Father is unhappy with the order and a few months he later files a motion requesting joint legal, joint physical and additional visitation time. Now, Father has the burden of showing the Court how his proposed changes are in the child’s best interests.
How to Modify a Permanent Custody Order
The showing required to modify a permanent custody order will also depend on whether you are trying to change custody from joint to sole custody or vice versa, or whether you are trying to change the visitation schedule.
If the parties have a permanent custody order (a Stipulated Judgment with the necessary language or the issue was litigated in trial and parents have a Judgment of Dissolution of Marriage containing custody orders intended as a final custody adjudication) and one parent wishes to change legal or physical custody from sole to joint or vice versa, the parent requesting the change bears the burden of showing a substantial change of circumstances. That that party must show: 1. There has been a substantial change of circumstances warranting modification; AND 2. The change is in the child’s best interest. The substantial change of circumstances requirement is only triggered after a permanent custody order has already been made.
What is a substantial change of circumstances in terms of child custody? There is no exact definition or exhaustive list, but each judge has the discretion to give different weight to different changes. Some examples include: one parent moves out of state or one parent moves so they live a substantial distance apart; the custodial parent has begun living with someone who has a criminal record; one parent is violating the ordered visitation; the child is substantially older than at the time the order was made; allegations of abuse; or the child is old enough to state a preference in court.
For example, Mother and Father went to trial and now have a Judgment of Dissolution of Marriage containing final custody orders. Mother has sole physical custody and Father sees the child on Monday and Wednesday overnights. Father now wishes to share joint physical custody as Mother has been refusing to comply with the ordered visitation. If Father files a motion to modify custody to joint physical custody, Father is required to show that there has been a substantial change of circumstances warranting the proposed modification AND that the modification will be in the child’s best interest.
If the parties have a permanent order and a parent only wishes to change the visitation schedule, a showing of changes circumstances is not required. For example, Mother and Father went to trial and now have a Judgment of Dissolution of Marriage containing final custody orders. Mother has sole physical custody and Father sees the child on Monday and Wednesday overnights. Father wishes to change the schedule to Wednesday and Thursday overnights. If Father files a motion to modify the visitation schedule, Father only has to show that the proposed change in the schedule is in the child’s best interests. Father does not need to show a substantial change of circumstances because although this is a final order, Father is only requesting a change to the visitation schedule.