Eugene E. Kinsey, Attorney at Law

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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 & 3088]

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.

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 petition.)

Jurisdictional Issues

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 order unless:

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 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. [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]

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." [Ca Fam § 3042]

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

Improper Consideration - 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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