When is a Custody Order Really “FINAL”?

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Having to litigate the issue of child custody can be an emotionally exhausting process. Litigation also tends to fray the relationship between the parents and the resulting tension almost always affects the children in some form. Clients justifiably want to know: when will it end?

Under California law, the Court continues to have the power to make child custody and visitation orders until a child turns 18. The orders can be changed at any time upon the filing of a motion. However, this doesn’t mean that the Court starts from scratch each time a parent files a motion to change the parenting plan. Sometimes, the law requires that the Court apply the changed circumstances rule, which makes it significantly more difficult to change custody. In these cases, the Court must find that there are significant changed circumstances exigent to the health, safety, and welfare of the child before it changes custody.

So when does the changed circumstances rule apply? It applies when there is a “final judicial custody determination” as stated in the Montenegro v. Diaz California Supreme Court case. If the parents litigate the issue of child custody at a trial or post-judgment hearing, these custody orders would be “final” and subject to the changed circumstances rule. A stipulated custody order or judgment that contains a clear, affirmative indication that the parties intended the stipulation to be a final judicial determination of custody will also invoke the changed circumstances rule.

child-custody-co-parenting.jpgIt is important to note that there are many circumstances where the Court makes an order after a contested hearing, but the order is not considered final. Temporary child custody orders and custody orders made pursuant to a Domestic Violence Restraining Order request, for example, are not considered final judicial custody determinations. Therefore, the changed circumstances rule does not apply to these types of orders.

Even though a finding of changed circumstances may be required to change custody, the Court never has to find changed circumstances to make slight modifications to the visitation schedule, pursuant to the Enrique M. v. Angelina V. case. Adding an overnight, for example, would probably not invoke the changed circumstances rule. In these situations, the Court would apply the best interests of the child standard as set forth in Family Code section 3011.

If you have questions about an ongoing custody and visitation matter, it is important that you discuss your rights with an experienced family law attorney.

At the Law Offices of Nancy J. Bickford, we understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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