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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Modify Child Custody
There are a number of ways to modify child custody, some of which occur automatically as a matter of law. You can modify child custody through a mutual agreement entered into by you and the other parent or you can return to court to have a mediator provided recommendations about a parenting plan.
One Parent Dies
Should the custodial parent pass-away, the surviving parent immediately becomes entitled to sole custody of a minor child, 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. There is no need to ask a court to modify child custody when the custodial parent’s dies since there is now only one parent to assert parental rights, the original custody order itself 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 to modify child custody or to request visitation by way of a guardianship or grandparents visitation petition.
The Uniform Child Custody Jurisdiction and Enforcement Act the Federal Parental Kidnapping Prevention Act are used to determine the proper forum to modify child custody and for 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 they want to modify child custody.
Jurisdictional issues arise under Uniform Child Custody Jurisdiction and Enforcement Act when either a California court is asked to modify child custody pursuant to an out-of-state order; or, a California court is asked to modify child custody or a 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 an action to modify child custody 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.
To Modify Child Custody and Visitation Order there must be a Change in Circumstances
Once there is a final determination on custody, a parent seeking to modify child custody 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 attempt to modify child custody 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 a request to modify child support 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.
You can modify child custody and visitation orders if the noncustodial parent decides 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 is 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 child 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 when there is a request to modify 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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