Modifying Custody Orders

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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.

My spouse liquidated our account during our divorce, can he do that?

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Experienced California divorce attorneys will educate you about automatic temporary restraining orders or ATROs. In California, on commencement of every divorce action, certain automatic temporary restraining orders are entered. These orders prevent spouses from the following:

Removing any minor child of the parties from California or applying for a new or replacement passport for such a minor child without the other party’s prior written consent or a court order. Fam C §2040(a)(1).

Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties or their minor children. Fam C §2040(a)(3). 

Transferring, encumbering, hypothecating, concealing, disposing of, or changing the beneficiaries of any real or personal property (whether community, quasi-community, or separate) without a court order or the other party’s written consent, except in the usual course of business or for the necessities of life. Fam C §2040(a)(3).  

Creating or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the other party’s written consent or a court order. Fam C §2040(a)(4). 

During the pendency of the divorce, meaning once you have filed but before the divorce judgment is entered, a spouse must abide by these rules or be subject to consequences. In answer to question posed as to whether a spouse can liquidate accounts, the answer is probably not. 

You can contact me at Amanda@gordonfamilylaw.com for more information.

Isn't there any easy way to divorce in California?

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Many California divorce clients ask if there is an easier way to get a divorce. And the answer is that it depends. Some individuals meet the requirements for a Summary dissolution. The barebones requirements are that you have been married less than 5 years without children and have limited debts and assets.  

The Self Help Section of the California Court's provide the following checklist (See the Courts Page for more info):

DO YOU QUALIFY FOR A SUMMARY DISSOLUTION?

To qualify for a summary dissolution of your marriage you must meet ALL of the following requirements.

You and your spouse:

In addition, if you are married, either you or your spouse must have lived in California for the last 6 months and in the county where you file for summary dissolution for the last 3 months. If you do not meet the residency requirement, you can still file for a legal separation but you have to go through the regular legal separation process, or wait until you meet the residency requirements for a divorce.

See http://www.courts.ca.gov/1241.htm for more info.  

HOW TO FILL OUT AN INCOME AND EXPENSE DECLARATION OR FL – 150

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Experienced Bay Area family law attorneys will tell clients that money is one of the most difficult and important aspects of divorce in California.  Your Income and Expense declaration or FL 150 may be the single most important document for your dissolution. This post explains why reporting your current earned and passive income accurately can make a huge difference in the outcome of your case.

If your case does not involve a request for spousal support or attorneys fees, there are 15 Items that you must fill out on an Income and Expense Declaration.

Before you start to fill this form out you should gather the following documents: (1) recent pay stub, (2) tax returns, (3) retirement accounts, (4) income from any rental properties, (5) monthly budget or expenses.  

1.    EMPLOYMENT INFORMATION:  Take this information directly from your pay stub. 

2.    AGE AND EDUCATION: Basic personal identifying information.

3.    TAX INFORMATION:  Take this information directly from your tax return.

4.    OTHER PARTY’S INCOME: It is best to be as accurate as possible. Ask for your ex-spouses pay stub.

5.    INCOME:

a.     Salary – Gross salary is what you make before taxes.  This is your immediate prospective earnings. You should put the amount per month and the average amount over the past 12 months. Remember to use gross figures (before taxes).  

b.    Overtime --- Any income earned over your assigned duties.

c.     Commissions or bonus income --- Click on this text for my post about bonus income. You will want to be very clear about how your commission scheme works and may want to speak with an attorney to optimize your outcomes.

d.    Public Assistance – This includes social security income.

e.    The remaining questions are self explanatory and specific to each situation – we recommend that you speak with an attorney if your questions are in these categories.

6.    INVESTMENT INCOME: Rental property income is income reduced by expenditures (which includes property taxes, maintenance, and hours managing property). Family Code Section 4508(2). Click on this text for my post on rental income in a divorce. 

7.    INCOME FROM SELF EMPLOYMENT: If this applies to your case, the information can be found on Schedule C of your tax returns. 

8.    ADDITIONAL INCOME: Lottery income, consistent payments from family, and income from Uber are all reportable.

9.    Change in income: If your financial situation has changed, use this section to explain why.

10. DEDUCTIONS: This information is found on your paystub. Many employers have discretionary retirement contributions, such as 401k contributions. Don't include your 401k contributions here, only include mandatory contributions such as a government pension. 

11. ASSETS: This information is found by looking at your bank statements, stock holdings, and real estate.  NOTE: You must fill out Section 11 correctly if you are going to request attorney's fees. 

12. PEOPLE LIVING WITH ME:  Spousal support can be impacted based on who lives with you. For example, if you are the supporting spouse and you have a new dependent, then you may have to pay less in support. The same goes if you are a supported spouse and you do not pay rent because someone else is paying your expenses in your home. That may impact your spousal support amount.

13. AVERAGE MONTHLY EXPENSES:

a.     Mortgage: If you have an adjustable rate mortgage, indicate what you expect the payments will be for the next 6 months. Determine the amount of principal and interest included in the monthly payment – this impacts tax deductions and net spendable income. Make sure you are including property taxes and property insurance. You may need to estimate the reasonable amount for repairs and upkeep (remember to include your gardener, pool service, and housekeeper).

b.    Health care: These are costs that are not paid by insurance. Include here your monthly prescriptions.

c.     Child care:  This includes aftercare, preschool, nanny, summer child care.  

d.    Groceries:  An average family spends $600 a month on groceries.

e.    Eating out: An average family spends $300 a month on eating out.

f.      Utilities: Use your bills to make this entry.

g.    Telephone:  Do not include business related telephone expenses.

h.     The second half of the categories are self explanatory and are not necessarily strategic with the exception of “n” savings and investments. There are some spousal support cases, which establish that the marital standard of living must be calculated by looking at the pattern of saving. The types of expenses that can go in “other” include hair cuts, pet care, memberships.

14.  INSTALLMENT PAYMENTS: Use your loan and credit card statements for this step.

15. ATTORNEY’S FEES: Enter the total amount you have paid thus far to an attorney. You must fill section 11 and 15 out correctly to get attorney's fees. 

If any of the following situations apply to your story, consider speaking with an attorney: (1) you have received gift income, (2) there are non-income producing assets, (3) one spouse is not working but they have a high earning capacity, (4) you or your spouse are able to generate income from investments, (5) there is a great disparity in income such that the other spouse’s lifestyle far exceeds that of yours. 

Contact amanda@gordonfamilylaw.com for more information.