Child custody and visitation orders generally are modifiable throughout the child’s minority whenever the court finds a modification is “necessary or proper” in the child’s best interests.

Because of the State’s paramount interest in the welfare of minor children, parents cannot divest the court of jurisdiction to oversee child custody and visitation during the child’s minority. Any stipulation or agreement purporting to impede the court’s power to render or modify a custody/visitation order is void and unenforceable.

The Law Offices of Edward Misleh, APC is a law firm that in Northern California with the services they need and deserve when addressing their legal matters. Our firm handles all aspects of California child custody, including sole and joint custody, child support, child support modification, and move-away orders. Call now our Lawyer Hotline. Call now 321-951-9164.

Child Custody Modification Order

Child custody modification order can be undertaken if one parent can prove a change in circumstances.

Change In Circumstance

A request from a parent seeking a child custody modification order of a “permanent” custody order required them to prove a significant change of circumstances. That a child custody modification order is necessary and essential to the child’s welfare. Absent such a showing, any child custody modification order would be an abuse of discretion as denying the child the benefits of a stable home environment and thus would not be in his or her best interest.

The “changed circumstances” rule is an adjunct of the statutory “best interests” test for determining child custody. It furthers the paramount 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” rule is triggered 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.

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 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.

Death of a Parent

If a custodial parent dies during the child’s minority, the surviving parent immediately becomes entitled to sole custody, unless 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. The question of “child custody modification order” becomes moot with the custodial parent’s death since there is now only one parent to assert a parental right.

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.

Jurisdictional Issues

The jurisdictional requirements of the Federal Parental Kidnapping Prevention Act (FPKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) must be satisfied whenever a California court is called upon to consider a child custody modification order. Both the FPKPA and the UCCJEA determine the proper forum as between interested states (or countries) for litigation of virtually all custody and/or visitation disputes.

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.

Continuing Jurisdiction

If all concerned parties were California residents when a California court made the original custody/visitation determination and the parties remain California residents when a child custody order modification is sought, the California court will have “continuing jurisdiction.” UCCJEA jurisdictional issues arise when either (a) a California court is asked to modify an out-of-state custody/visitation order; or (b) a California court is asked to modify its own custody/visitation order after any of the concerned parties has moved away.

Exclusive and Concurrent Jurisdiction

Generally, the state that made the initial child custody determination will have exclusive, continuing jurisdiction to grant a child custody modification order. There cannot be “concurrent” UCCJEA modification jurisdiction. A California court may not modify another state’s custody/visitation order unless:

California has jurisdiction to make an initial custody determination. i.e. California is the “home state” or there is a “significant connection” with the State of California, and, either:
The other state court determines (i) 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,” have 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 (ii) 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.

Resolving Jurisdictional Issues

If the California court is on notice (through the documents supplied by the parties) that custody litigation has been commenced in another state having jurisdiction “substantially in accordance with” the UCCJEA, the California court must stay its proceeding and communicate with the other state court to resolve the jurisdictional conflict.

Burden of Persuasion

Because of the child’s predominant need for stability and continuity and the state’s strong interest in preserving same (above), the burden of persuasion is on the moving party to show how circumstances have changed and why the cild custody order modification would be in the child’s best interests. The burden is two-fold in modification proceedings: The party seeking to change an existing custody order assumes both the burden of (a) persuading the trier of fact that a new custody arrangement is in the child’s best interests, and (b) putting forth sufficient evidence of a substantial change in circumstances warranting a modification.

Best Interest Test

A showing of changed circumstances does not ipso facto require the court to grant the requested custody modification. The court’s decision must be based on the standards and policies governing all custody determinations – significantly, the child’s best interest, with the primary concern being the child’s health, safety and welfare, and, so long as consistent with the child’s health, safety and welfare, the preference for “frequent and continuing contact” with both parents.

Relocation Of The Parents

A noncustodial parent’s relocation far enough away to preclude the exercise of existing visitation rights can itself be ground for modifying the visitation order to allow for a different contact schedule – longer, but less frequent, visitation periods (such as increasing spring or summer vacation visitation time in lieu of weekend visitation). Such a modification implements public policy in assuring the child of continuing contact with both parents. In a move-away contest, where the noncustodial parent is unable to meet the changed circumstances/detriment burden to warrant a custody modification, the move-away likely will warrant a modification of orders concerning visitation to minimize the children’s loss of contact with the noncustodial parent. The trial court even has discretion in such cases to order the custodial move-away parent to bear the visitation travel costs either directly or through a “special circumstances” takeoff from guideline child support.

Stability Of Child’s Environment

The paramount interest in continuity and permanency of custodial placement will often weigh against a child custody order modification request. In some cases, however, a custody modification is warranted to preserve the children’s interest in stability and continuity of environment. For example, although a custodial parent generally has the presumptive right to relocate with the children, stability and continuity of environment regarding adolescent (teenage) children may lie not with either parent, but with the children’s circle of friends, activities and ties within a school or community. In that case, the trial court may properly exercise its discretion in determining the contemplated move-away requires a change in physical custody so that the children can remain in their existing community.

Frustration Of Visitation

In extreme cases, conduct by the custodial parent designed to frustrate visitation and communication between the child and other parent may be ground for changing custody. In one case, it was found that Mother’s “unrelenting pattern of frustrating” Father’s visitation rights, coupled with findings that Father was more likely to permit child’s frequent and continuing contact with noncustodial parent, “alone provided adequate grounds for changing custody” to Father.

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 “sufficient age and capacity to form an intelligent preference as to custody.” Whether the minor is of “sufficient age and capacity” (so as to satisfy the threshold prerequisite to consideration of the child’s wishes) varies with each child. The requisite maturity is not measured by any particular chronological age. Generally, courts become more receptive as the child approaches teenage years, but some courts will listen to children as young as seven or eight.

Change In Economic Circumstances is not Factor

The parents’ relative economic positions – even if changed since the prior custody determination – cannot be considered. Simply stated, economic advantage or comparative income has no bearing on a child custody adjudication. If in fact the custodial parent’s financial resources are insufficient to provide proper care for the child, the remedy is through a child support order – not through a change of custody.

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.

Parents Relocation

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.