What can you do if you are no longer happy with the custody and visitation schedule that you have with your ex spouse? Are you seeking sole custody, or a revision to your joint custody schedule?
First, either parent may petition to modify or terminate joint custody. [FC §3087.] This petition usually takes the form of a Request for Order, however, it can be presented to court as an ex parte application or a noticed motion.
Next, Parties must prepare Judicial Council forms of custody or visitation orders for a Judge's signature.
• The findings and order after hearing [see form FL-340],
• A child custody and visitation order attachment [see form FL-341],
• A supervised visitation order attachment [see form FL-341(A)],
• A child abduction prevention order attachment [see form FL-341(B)],
• A children's holiday schedule attachment [see form FL-341(C)],
• An attachment for additional provisions for physical custody [see form FL-341(D)], and
• A joint legal custody attachment [see form FL-341(E)].
Check your local rules for specifics to see whether you will need to make an appointment with the Court appointed mediator.
A Judge will review the request for a change and will make a modification or termination if the Judge believes that modification is in the child's best interest.
Below is some of the basic vocabulary so you can understand what you can ask to change.
Joint legal custody: Both parents share the right and responsibility to make decisions relating to the child's health, education, and welfare. [FC §3003.] Either parent acting alone may exercise legal control over the child in a joint legal custody arrangement unless your order requires joint decisions. If you require joint decisions, the Judge’s order must specify the circumstances when mutual consent is required and the consequences of failing to obtain such consent. [FC §3083.]
Joint physical custody: Each parent has significant periods of physical custody. [FC §3004.] An equal division of the child's time is not required. [Marriage of Birnbaum (1989) 211 CA3d 1508, 1515-1516.] Some judges consider any timeshare over 30 percent to be joint physical custody. The order must specify the rights of each parent to physical control in sufficient detail to enable a parent deprived of that control to implement anti–child snatching and kidnapping laws. [FC §3084.]
Joint legal and physical custody: Parents share joint legal and joint physical custody. [FC §3002.] If both parents agree to joint custody, there is a presumption that it is in the child's best interest. [FC §3080.] Otherwise, with exceptions for domestic violence and abuse, it is generally within the judge's discretion whether to award joint custody. [FC §3081.] On request of a party, the Judge must state the reasons for granting or denying a request for joint custody. [FC §3082.] In ordering joint physical or joint legal custody, the Judge may specify one parent as the primary caretaker and one home as the primary home for purposes of determining eligibility for public assistance. [FC §3086.]
For a Judge to change a custody and visitation order, they must find a significant change in circumstances. This means that subsequently occurring material facts and circumstances make a change essential or expedient for the child's welfare. The changed circumstance rule assumes that the prior final order was in the child's best interest based on circumstances as they existed at that time. The party seeking the change has the burden of demonstrating a sufficient change in circumstances.
This means that if you want to change or modify your existing order, there must be a significant change of circumstances, such as increase of time available for child care, change of job, or change of the other parent’s status and ability to care for the children.
If you are concerned that the Court may not grant your requests, it is best to consult with an attorney to evaluate your case.
You can contact me at Amanda@gordonfamilylaw.com for more information.