If you already have a custody order in place and you wish to modify the order, what you will need to show or prove depends on whether you have a temporary custody order or a “permanent” custody order. It will also depend on whether you are trying to change custody from joint custody to sole custody or vice versa, or whether you are only trying to change the parenting plan (visitation schedule).
A temporary custody order is an order made during the pendency of the divorce proceedings before a Judgment of Dissolution of Marriage is entered. A temporary order can be subsequently modified with another temporary order, or it can be superseded with entry of the Judgment.
A “permanent” custody order is a final judicial determination of custody. A Judgment containing custody orders is a “permanent” custody order.
You can share joint custody with your ex-spouse, or one party may have been awarded sole custody. A parenting plan (visitation) is the actual schedule and amount of time each parent has with the child. For example, the parties may share joint physical custody and have a parenting plan consisting of weeknight visits and alternating weekends.
No matter what type of custody order you have (temporary or permanent), what you want to change (joint to sole or vice versa; or parenting plan only), or when you want to change it (pendency of proceedings, or after entry of Judgment), you will always have to show why a different custody order would be in your child’s best interest. The court always makes child custody orders based on the child’s best interest. The child’s best interest requires the court to consider all relevant factors, including these mandatory factors required by the California Family Code: The child’s health, safety, and welfare; history of physical abuse; history of habitual and continual drug or alcohol abuse; and nature and amount of existing contact with both parents. The court also considers the need for continuity and stability of the custody arrangement.
Changes to Temporary Custody Orders
If you currently have a temporary custody order and you wish to make a change in custody (joint to sole, or sole to joint), or you wish to just change the parenting plan, all you need to show is the change is in the child’s best interest. This is true for modifying a temporary order with a new temporary order, as well as modifying a temporary order by way of obtaining a “permanent” custody order in a Judgment when you finalize your divorce.
Changes to “Permanent” Custody Orders
Once you have a “permanent” custody order (that is, a Judgment), not only will you need to show that a change to the custody order is in the child’s best interest, but you will also have to meet the threshold burden of showing that there has been a substantial change of circumstances so affecting the child that a modification of the custody order is essential for the child’s welfare. The change of circumstances requirement is required if you wish to change a “permanent” custody order from joint to sole or from sole to joint. Changed circumstances is not required for changing a “permanent” order if all you are requesting is a change of the parenting plan (visitation schedule).
Example 1: Mother and Father are in the middle of their divorce and do not yet have a Judgment. Mother and Father have temporary custody orders: They share joint physical custody and a parenting plan consisting of weeknight visits and alternating weekends. While the divorce is still pending, Mother feels the child’s weeknight visits is disruptive to the child’s schooling and Mother wishes to modify the parenting plan to alternate weeks (week on, week off). Mother may file a request to modify the parenting plan and Mother only has to show that alternate weeks is in the child’s best interest.
Example 2: With the same facts as Example 1 where Mother and Father have a temporary custody order for joint physical custody and a parenting plan consisting of weeknight visits and alternating weekends, but Mother and Father are now at the family law trial to obtain a Judgment in their case. Mother wants sole custody in the Judgment. Because there is not yet a “permanent” judicial custody determination (in fact, a final determination is what Mother and Father are currently at trial for), Mother only has to show that sole custody would be in the child’s best interest. Mother does not have to show a substantial change of circumstances because that requirement is only triggered after a “permanent” custody order has already been made. Changed circumstances is not required for a “permanent” custody order that is made on the heels of a temporary order.
Example 3: Mother and Father have a Judgment of Dissolution of Marriage containing custody orders intended as a final custody adjudication. Mother has sole physical custody and Father sees the child on Monday and Wednesday overnights. Father wishes to modify his schedule to see the child on Tuesday and Thursday overnights instead. Father may file a request to modify the parenting plan and Father only has to show that the new schedule is in the child’s best interest. Even though there is a “permanent” custody order, Father does not have to show a substantial change of circumstances because Father is not requesting a change from Mother’s sole custody to joint custody shared between the parties; Father is only requesting a change to the parenting plan.
Example 4: With the same facts as Example 3 where Mother has a Judgment for sole physical custody and Father has Monday and Wednesday overnights. Father now wishes to share joint physical custody. Father may file a request to modify custody and Father is required to show that there has been a substantial change of circumstances warranting the modification and that the modification will be in the child’s best interest.
All cases are different and require a consultation with an attorney to evaluate the facts and law. Speak with a Ventura divorce lawyer to learn more about the requirements to modify your custody order. Call the Law Office of Christine Nguyen Thomas at (805) 351-8866 for a consultation regarding your child custody and visitation matter.