CHILD CUSTODY OR VISITATION ORDERS
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Modifiability Of Child
Support Orders - General Concepts
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.
[Ca Fam § 3022; see also Ca Fam §§ 3087 &
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
Effect Of Death Of A Parent
Death Of A Custodial Parent: If the 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.
Therefore, the question of "custody modification"
becomes moot with the custodial parent's death: i.e., since
there is now only one parent to assert parental rights, the
original custody order itself is moot.
Similarly, a child custody order technically becomes "nonmodifiable"
with the noncustodial parent's death (again, assuming the parents
were the only parties to the order). Thus, third parties who
for the first time want to contest custody or visitation must
do so by way of an independent proceeding (guardianship, dependency
or, in the case of grandparents, a Ca Fam § 3104 visitation
As with the rendition of an initial child custody or visitation
order, the jurisdictional requirements of the Federal Parental
Kidnapping Prevention Act (FPKPA, 28 USCA § 1738A) and
the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA,
Ca Fam § 3400 et seq.) must be satisfied whenever a California
court is called upon to modify a child custody/visitation order.
Both the UCCJEA and the FPKPA determine the proper forum as
between interested states (or countries) for litigation of virtually
all custody and/or visitation disputes.
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 modification
is sought, the California court's "continuing jurisdiction"
will not be in issue. 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.
Generally, the state that made the initial child custody determination
will have exclusive, continuing jurisdiction to modify the order.
There cannot be "concurrent" UCCJEA modification jurisdiction.
[Ca Fam §§ 3422, 3423]
A California court may not modify another state's custody/visitation
California has jurisdiction to make an initial custody determination
under Ca Fam § 3421(a)(1) or (2) ("home state"
or "significant connection" jurisdiction, ¶7:90
ff., 7:100 ff.); 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 under Ca Fam § 3427; 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.
[Ca Fam § 3423(a) & (b); 28 USCA § 1738A(d),(f)]
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. [Ca Fam § 3426(b)]
Basis For Modification
Of Child Custody And Child Visitation Orders - Changed Circumstances
Although the statutory scheme governing custody adjudications
only requires courts to ascertain the child's best interest,
the "best interest" standard has an added twist once
a "final" judicial custody determination is in place:
A party 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. Absent 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 his or
her best interest.
The "changed circumstances" rule is an adjunct of
the statutory "best interests" test for determining
child custody (Ca Fam §§ 3011, 3040(b)). 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.
Because of the child's predominant need forstability and continuity
and the state's strong interest inpreserving same (above), the
burden of persuasion is on the moving party to show how circumstances
have changed and why the custody 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.
Application Of General
Child Custody/Visitation Standards In Modification Cases
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 Ca Fam §§ 3011, 3020
and 3040 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.
[Ca Fam §§ 3011, 3020, 3040]
Relocation Of The Parents
Noncustodial Parant's Relocation: 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--e.g.,
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 (Ca
Fam § 3020). [Marriage of Burgess (1996) 13 Cal.4th 25,
40, 51 Cal.Rptr.2d 444, 455]
Custodial Parent's Relocation: 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. [Marriage of Burgess,
supra, 13 Cal.4th at 40, 51 Cal.Rptr.2d at 455; see Marriage
of Bryant (2001) 91 Cal.App.4th 789, 794, 110 Cal.Rptr.2d 791,
796 (non-move-away parent granted liberal visitation)] 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 Ca Fam § 4057(b)(5) "special
circumstances" takeoff from guideline child support.
Note - Stability Of Childs Environment To Be Considered:
The paramount interest in continuity and permanency of custodial
placement will often weigh against a custody modification request.
In some cases, however, a custody modification is warranted
to preserve the children's interest in stability and continuity
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
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. [Marriage
of Burgess, supra, 13 Cal.4th at 36, 51 Cal.Rptr.2d at 452,
fn. 6; Burchard v. Garay (1986) 42 Cal.3d 531, 540, 229 Cal.Rptr.
800, 806, fn. 11; see Catherine D. v. Dennis B. (1990) 220 Cal.App.3d
922, 932, 269 Cal.Rptr. 547, 554--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]
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." [Ca Fam
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
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.
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