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Serving San Diego Family Law For Over 28 Years
MODIFYING A CHILD CUSTODY ORDER:
Unlike other types of court orders (for example, orders dividing property), child custody orders may be changed, or "modified" by a modification order.
When You Seek A Custody Modification, What Do You Have To Prove? In modification motions there are two burden of proof considerations-Proof of changed circumstances; Proof that the best interests of the child require a change.
Changed Circumstances: It is important to note that unless the person seeking the modification ("moving party") can prove that the circumstances critical to the custody determination initially have changed, the court will not allow any evidence on the issue of the best interests of the child. In cases where one parent has had custody of a child for a substantial period of time, then the moving party must prove that the circumstances have substantially changed.
Best Interests of the Child: Once changed circumstances have sufficiently been established, the court will modify the custody or visitation order based upon a showing that the best interests of the child requires a different order.
What Impact Do The Desires Of The Children Have On The Threshold Question Of Change In Circumstances?
General Rule: In California, Judges must consider the preferences of children who are of sufficient age and maturity.
Age of the Child: There is no set age at which time the court must consider the child's preference. Sufficient age is a finding of fact by the court. Generally, this finding will be made for children of age 12 and older.
How Preference is Considered: In order to satisfy California law, 10 to 15 years ago, judges either interviewed children in chambers or the child came into the court and testified. Currently, most courts in California receive information concerning the child's preference indirectly. For example, the child's preference is commented upon in a court ordered psychological evaluation. Mediation services around the State will also provide this information to the court in appropriate cases.
Impact Of The Child's Preference In Modification Proceedings: California law requires the court to consider the child's preference in certain circumstances; it does not require the preference to be followed. However, as a practical matter, the child's preference is always a significant factor.
Practical Considerations
Change of Circumstances: In the initial interview with a client concerning a modification motion, the attorney must not proceed unless the attorney can see how to establish that the necessary change of circumstances has occurred.
Timing of the Motion: Many clients receive an order that they do not like. Frequently, these orders are not subject to appeal. The attorney cannot use a modification motion as a vehicle to get back into court (hopefully before a different judge). As a practical matter, several months must go by to evaluate whether proper grounds exist to bring a modification motion.
Degree of Modification: It is easier for a non-custody parent to go from 20% custody to 35% (or 33% to 50%) custody than to go from every other week end to sole custody (absent exigent circumstances).
School Age Children: Most changes in physical custody (absent exigent circumstances) require that the timing of the motion carefully consider the beginning of the school year. This consideration may require that the change of custody motion be filed in April/May in order for mediation and/or evaluations to be completed by summer (when school starts in the fall). Even in this example, a trial estimate of more than ½ day may mean that the trial will not occur until after the start of school.
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CALL TOM HUGUENOR TODAY AT 858-546-4868
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