California child custody and visitation orders generally are modifiable until the child becomes an adult at the age of 18. A California court must find that the request to modify is “necessary or proper” and in the child’s best interests.
California’s interest in the welfare of children prohibits parents from divesting a California court of jurisdiction to oversee modifying a child custody or visitation order.
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California Child Custody Modification
California child custody modification is undertaken after a judge makes a custody and visitation order and one parents wants to change the order.
There are many good reasons why a parent may want to request a California child custody modification. As children get older, for example, their needs, interests, and activities change. And as each of the parents moves on with his or her separate life, new partners, new jobs, or new homes can all mean that there is a need for a California child custody modification.
One Parent Dies
California child custody modification is not required should the custodial parent pass-away – the surviving parent immediately becomes entitled to sole custody of a minor child and there is no need to modify child custody.
The surviving parent can be denied custody if, it is proved by clear and convincing evidence, that such custody would not be in the child’s best interests and would be detrimental to the child. There is no California child custody modification issue when the custodial parent’s dies since there is now only one parent to assert parental rights. Any original custody order is moot. Likewise, a child custody order becomes non-modifiable with the noncustodial parent dies. However, this does not prevent a third party from commencing an independent action for a California child custody modification order for a guardianship or grandparents visitation.
The Uniform Child Custody Jurisdiction and Enforcement Act the Federal Parental Kidnapping Prevention Act are used to determine the proper forum for custody and visitation disputes when addressing the interests of competing states or countries. Jurisdictional requirements of both of these acts must be satisfied whenever a California court is called upon to modify a child custody/visitation order.
A California court has continuing jurisdiction if the parties were California residents when a California court made the original custody or visitation determination and the parties remain California residents when a modification is sought.
Jurisdictional issues arise under Uniform Child Custody Jurisdiction and Enforcement Act when either a California court is asked to modify an out-of-state custody or visitation order; or, a California court is asked to modify its own custody or visitation order after a party has moved away. Generally, the state that made the initial child custody determination will have exclusive, continuing jurisdiction to modify the order. There cannot be concurrent or simultaneous jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.
A California court may not modify another state’s custody or visitation order unless California has jurisdiction to make an initial custody determination, California is the home state, or there is a significant connection to the state. In addition, the other state court must determines that it no longer has exclusive, continuing jurisdiction because neither the child, nor the child and a parent, nor the child and a “person acting as a parent,” has a “significant connection” with that state and “substantial evidence” is no longer available in that state concerning the child’s care, protection, training and personal relationships, or a California court would be a “more convenient forum” to entertain the proceeding; or a California court or the other state court determines that the child, child’s parents and any ‘person acting as a parent” do not presently reside in the other state.
If the California court has notice that a custody litigation has been commenced in another state having jurisdiction substantially in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, the California court must stay its proceeding and communicate with the other state court to resolve the jurisdictional conflict.
California Child Custody Modification Requires Change in Circumstances
Once there is a final determination on custody, a parent seeking to modify a permanent custody order can do so only upon a showing of a significant change of circumstances so affecting the child that modification is essential to the child’s welfare. Without such a showing, any modification would be an abuse of discretion as denying the child the benefits of a stable home environment and thus would not be in the best interests of the child.
The requirement to prove a change in circumstances furthers the goal of preserving the need for continuity and stability in custody arrangements, unless some significant change in circumstances indicates a different arrangement would be in the child’s best interest.
The changed circumstances requirement is used only after a final or permanent custody adjudication. The ordinary best interest standard, without the additional changed circumstances burden of proof, applies when the court makes an initial custody adjudication and when it adjudicates custody following any temporary or interim custody order.
The parent filing for a California child custody modification has the burden of persuasion to show that there has been a change in circumstance and that a modification would be in the child’s best interests. The parent requesting a modification must persuade a California court that the modification is not only in the child’s best interests but that there is sufficient evidence of a substantial change in circumstances to warrant a modification.
A California child custody modification may be undertaken should the noncustodial parent decide to move. A noncustodial parent’s relocation often results in a visitation schedule that is less frequent but longer in duration. Should the custodial parent decide to relocate, the court considering the move away order will require the noncustodial parent to prove that the change in circumstances is a detriment which often means that visitation is not feasible. A California court has the discretion in such cases to order the custodial move-away parent to bear the travel costs for visitation.
Although a custodial parent generally has the presumptive right to relocate with the children, the noncustodial parent can argue that the child’s stability does not necessarily with either parent but is with their community, the child’s friends, activities and ties with the community. Should a California judge be so convinced, the court could order a change in physical custody so that the children can remain in their existing community.
Considering the Child’s Preference
As with an initial custody determination, the court is required to consider and give due weight to the preferences of a child, of a sufficient age and capacity to form an intelligent preference, regarding custody. “Sufficient age and capacity” can vary but courts and while most courts are receptive to a teenage child, some courts will listen to children as young as seven or eight years of age.
Parent’s Change In Economic Circumstances
One parent’s change in economic or financial condition is not an issue to be considered for modification of child custody or visitation. Any economic advantage one parent may have or the comparative incomes have no bearing on a child custody determination or modification.
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