Child Custody Modification Process

What does it take to get child custody orders modified?

When a child custody order is made by a family court judge in California, it is subject to modification anytime there is a change in circumstances such that a change in the child custody or visitation orders would be in the best interests of the children.

The “best interest” standard is the golden rule in family court proceedings involving the custody of children. The family court judge has wide discretion when it comes to making orders in this area and can take into consideration a wide variety of factors and circumstances including the financial circumstances of both parents, the living conditions of both parents, the relationships and lifestyle of both parents, any history of drug or alcohol use or abuse, the choice of the children of sufficient age to reason, and even the school district wherein the parents reside.

The modification of child custody or visitation begins with the filing of a motion to modify. Once filed, the Court will set two dates. The first date is a date for the parties to attempt to mediate an agreement at what is called Family Court Services Mediation or “FCS” in San Diego County. The second is the Court date for the Judge to decide whether the current orders should be modified. If the parents do not come to an agreement at FCS, the mediator will write a report and recommendation to the judge.

Each parent has the right to review the report at least 10 days prior to the hearing and either agree to the recommendations, or argue to the Judge why the Court should not adopt the recommendations of the mediator. At this time, each parent’s divorce lawyer can advise as to whether it is worthwhile to put the FCS mediator on the witness stand for cross-examination. This is a costly process and should only be employed if the cross-examination could prove helpful to the Judge in making orders counter to the recommendations of the FCS mediator.

At the hearing regarding child custody modification, each party will be given an opportunity to present documentary evidence, witness testimony and argument in support of his or her position. At the end of the day, the Judge has a very difficult decision to make that at least one parent will most likely disagree with. Leaving this decision in the hands of the family court judge is ultimately the result of two parents being unable to co-parent and work together for their children. At times this is necessary. However, it should be avoided if possible. Effective communication and willingness to bend is the key to staying out of family court. Child custody modifications can be obtained much easier by way of stipulation and agreement between the parents than by a nasty custody battle in court. The money spent on lawyers would be much better spent on a college fund for the kids. I always encourage settlement first and litigate child custody issues only if absolutely necessary.

This article is not meant to provide legal advice. Call now for a free consultation with an experienced child custody lawyer at Griffith, Young & Lass.