One of the most common questions in Family Law is whether a custody order is “permanent”. While court orders have a number of designations from “minute”, “emergency”, “temporary”, and “final”, such terms have more to do with legal questions than duration. As a matter of fact, while orders may be “temporary”, if the parties never return to court to modify them, they have a degree of permanence that may never have been intended. What is clear, however, is that as time passes, certain provisions of custody orders that at first worked well, or seemed appropriate may no longer be necessary. Without going through an exhaustive list of examples, life happens fast, and can cause changes to children’s activities, parent’s relationships, parent’s jobs, and everything else.
While custody orders can always be modified by the parties themselves without court involvement, in high conflict cases, or just regular cases, sometimes an out of court agreement cannot be reached, which means the parties must return to Court. In such situations, the Family Court custody process starts anew, with one party having to file a Request for Order (Motion), and the parties having to return to Family Court Services (FCS). It is important to note that, unless extenuating circumstances exist, the Court system is loath to send parties to FCS more than once during a calendar year. It is also important to note that custody modification motions can and do take a great deal of time to proceed through the Court system, and during that time, unless other circumstances exist that usually revolve around the safety of the minor or minors at issue, the prior orders remain in effect.
Other than reaching an out of court agreement as to custody changes, the fastest way to obtain a modification of custody orders is to reach an agreement at FCS. The main point of FCS is, if possible, to bridge the gap between the parties, and to allow a neutral third-party mediator to ascertain what is occurring with the minor or minors. If an agreement cannot be reached, this mediator will provide both the parties and the Court with their recommendations in a report.
With respect to filing motions, the main legal reasons for changing custody in California are based on the “change in circumstances” test, and whether such changes are in the “best interests” of the minor or minors. Both tests are highly fact specific and turn on the specific fact patterns of each case but are designed to prevent parties from running to Court to seek modifications for every perceived issue. When presenting such issues to the Court, one needs to provide a clear and concise list of reasons that is based on independent and corroborated evidence. While there are other ways to change custody in Family Court, such other situations usually involve restraining orders, criminal conduct, or other child endangerment issues, that while separate, also at some point consider the “best interests” of the minor or minors.
Given the nature of the relief requested, child custody modification motions are serious business, and a serious matter that one needs to be prepared for to obtain the relief that they want. There also can be many forms, depending on what type of relief one is seeking for themselves, and potentially their children. If you have questions about either filing or defending a modification request, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end, and who will advocate for you to get the protection you need. Contact our office today with any child custody questions you may have to protect your rights and those of your children.
Categories: Child Custody | Tags: child custody, family law
Christopher Sunnen, Esq. is a San Diego, CA based attorney specializing in family law and bankruptcy law.