Many people who have gone through divorce in California tend to view the judge’s signature on the final order as the very last step. Unfortunately, life is not certain, even after a divorce. The former spouses may experience unanticipated life changes, such as a new job in a different state or a disabling illness or injury. In such cases, one spouse or the other may experience a profound need to change the child custody order signed by the judge while the divorce was pending. What can be done?
In California, a divorced couple can make their own agreement on modifying the terms of the existing child custody order. If both parties agree, the court which originally had jurisdiction over the divorce will sign an order making the agreed-upon changes, and the parties will follow the amended order. If the parties do not agree, the situation can be more complicated. If the parties do not agree, one of them must bring the matter before a court having jurisdiction (jurisdiction exists if one of the parties lives in the district in which the judge has his or her chambers.) The party seeking to modify the existing order must probe by a preponderance of the evidence that the parties have experienced a significant change in circumstances and that the requested modification of the custody order will serve the best interests of the child.
Bringing the case before a judge
To bring the matter before a judge, the party seeking the modifications must file a written motion with the clerk of court and serve a copy of the motion on the other party. The motion must state the reasons why a modification of the prior order is justified and how granting the order will serve the bests interests of the child. The other ex-spouse will usually be given a specified period in which to respond.
The court that will hear the motion will usually require the parties to go through mediation or some other form of alternative dispute resolution before hearing the matter. If such steps do not yield an agreement, the court will hear evidence and make its decision based on the evidence presented during the hearing. In making its decision, the court will apply the same factors it used in formulating the original order. These factors include the health, safety, and welfare of the child, any history of abuse by any person seeking to influence the outcome of the court’s decision, the nature of the child’s interactions with each parent, and any use of illegal substances.
Retaining an attorney
As may be inferred from the foregoing discussion, resolving a motion to modify an order for child custody can be complex, and the assistance of an experienced family law attorney may be very helpful.