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How the “Changed Circumstances” & “Best-Interest of the Child” Standards Affect Your Post-Judgment Modification Requests.

By Channe Coles on Oct 13, 2014 at 02:12 PM in California Divorce Law

Okay, so you have a final judgement that sets forth specific custody and support orders, time-share schedule, and/or a co-parenting plan, and which, for the most part, has worked for the past year (or years). But, what happens down the road when circumstances change or you are faced with a unique or new situation, which wasn’t addressed in the judgement? Either way, you feel a modification of the post-trial judgement is warranted and needed for the sake of your child. How do you seek a modification in court when the other parent won’t agree to your requested change? And what is the standard the Court looks to when deciding on a request to modify a post-trial judgement?

The means and mechanism for obtaining a modification of a final judgement in a family law matter is the “RFO” or Request for Orders. An RFO is used post-judgement to request modifications of permanent child support, custody, or other permanent orders contained in the judgement of dissolution or legal separation.

California law states that child custody and visitation orders generally are modifiable throughout the child’s minority whenever the court finds a modification is “necessary or proper” in the child’s best interests. This is called the “best interest of the child” standard. Although the statutes governing custody adjudications only requires courts to ascertain the child’s best interest, the best interest standard has an added twist once a “final” judicial custody determination is in place: A party seeking to modify a “permanent” custody order can do so only upon a showing of a significant change of circumstances so affecting the child that modification is essential to the child’s welfare. Absent such a showing, any modification would be an abuse of discretion as denying the child the benefits of a stable home environment and thus would not be in his or her best interest. [See Montenegro v. Diaz (2001) 26 Cal. 4th 249, 256; Marriage of LaMusga (2004) 32 Cal. 4th 1072, 1088.

The “changed circumstances” rule is considered in addition to the statutory “best interests” test for determining child custody. It furthers the paramount goal of the California Legislature of preserving the need for continuity and stability in custody arrangements, unless some significant change in circumstances indicates a different arrangement would be in the child’s best interest. [See Montenegro v. Diaz, supra, at 256, see also Burchard v. Garay (1986) 42 Cal. 3d 531, 535, and Marriage of Brown & Yana (2006) 37 Cal. 4th 947, 956.]

What this means for you? Well, if you plan on going back to court to modify the status quo custodial arrangement, you will need to present to the court that a change of circumstances has occurred – AND – that the requested change is essential to your child’s well being. Simply telling the court what your “feelings” are on a particular subject matter or that you continue to struggle under the previous status quo isn’t good enough. You need to show an “actual” change and then argue with extraneous facts why a change is necessary.

The “Changed Circumstances” Rule Is Triggered Only After Final Judgment; Whereas the “Best Interests of the Child Standard” Applies in Both Pre & Post-Judgment Modifications.

The changed circumstances rule is triggered only after “final” or “permanent” custody adjudication. The ordinary best interest standard, without the additional changed circumstances burden of proof, applies when the court makes initial custody adjudications, and when it adjudicates custody following any temporary or interim custody order. [See Montenegro v. Diaz, supra 26 Cal. 4th at 256, 257; Marriage of Burgess (1996) 13 Cal. 4th 25, 29, 37.]

Again, this is because the court is loath to change the status quo under the assumption that unreasonable and intermittent upsets in a child’s life negates and interferes with the Legislative goal to obtain continuity and stability in a child’s life; particularly when it comes to custodial arrangements.

“Changed Circumstances” Prerequisite to Modifying Post-Judgment Guideline Child Support Orders

Child support can also be modified after a divorce or final-judgment, but only after a change of circumstances. Anytime one or both parent’s incomes change (up or down) or the time one parent spends with the children goes up or down and stays there, a parent may seek a modification of child support. You do have to show that there has been a “change in circumstances” since the last child support order was made. However, if the judge ordered a child support amount below the guideline amount, you can ask to change that amount at any time. You do NOT need to show a change in circumstances.  This is true even if your non-guideline child support order was reached by stipulation (agreement) between the 2 parents.

The “Changed Circumstances” Standard Does Not Apply to Non-Custodial Modifications.

No change of circumstances need be shown as a prerequisite to altering only the co-parenting schedule (the amount of time the child spends in each parent’s household) under a joint custody order; the only standard the moving parent must meet in such cases is the child’s best interest. Enrique M. v. Angelina V. (2004) 121 Cal. App. 4th 1371, 1379, 1380; Marriage of Birnbaum (1989) 211 Cal. App. 3d 1508, 1513. Because such a modification does not change “custody,” the trial court considers a visitation modification solely under the child’s best interests standard. [See Marriage of Lucio (2008) 161 Cal. App. 4th 1068, 1077, 1080.]

Other issues can also be addressed post-judgment without having to show a changed circumstance. Similar to time-share schedule modifications, as long as the matter does not pertain to custody and/or support, your request will be considered solely under the “best interest” standard. Thus be prepared, in advance to argue both the facts and circumstances necessary to proving why you request will be in your child’s best interest; arguing the tri-part goals of health, safety and (physical and emotional) wellbeing.

Channe G. Coles
Family Law Practitioner
Law Office of Channe G. Coles

May 25, 2016 Arrow1 Down Reply
David

Great article.

Aug 02, 2017 Arrow1 Down Reply
Jeanne

Very descriptive and helpful. Would like to see some 'examples' of significant change of circumstances. Would a move of the parties since the Judgment be significant in changing from joint legal to sole legal now that the mom has all the responsibilities of health, education and welfare decisions and the dad now just wants to object to the child having a passport?