All California custody decisions are based on the guiding principle of the best interest of the child. Over time, a child’s needs may evolve, and likewise the ability of a parent to provide for the changing needs of a child can also change over time.
A post-judgement modification to an existing child custody agreement can be requested from a judge by either parent or their San Francisco family law attorney at any time the circumstances of the original order have changed substantially such that they would warrant an alteration to the existing arrangement.
Unless demonstrated otherwise, the court will assume that the existing order is correct, and that changes may be disruptive to the child’s life and detrimental to his or her well-being, so the parent requesting modification must demonstrate a significant change in circumstance.
In weighing a modification, the court will consider various factors that relate to the general well-being of the child, including the child’s age, health and safety, the ability of each parent to care for the child, the child’s education and involvement in community and religious activities, and the emotional bond between the child and each parent.
Changes to the parenting schedule and the amount of parenting time are the typical form of modification. Changing the primary custodial parent is uncommon, and unlikely unless major safety, health or other detriments to the child’s well-being can be demonstrated.
Changes that may warrant modification
Relocation issues are among the most common reasons for modification. California courts typically do not modify custody orders solely based on relocation. However, modification may be warranted if the change is likely to have a detrimental impact on the child’s physical health or emotional well-being, or the ability of the non-custodial parent to spend time and have a relationship with the child, or impact the child’s relationship with siblings.
The court may consider the emerging educational needs of a child and whether one parent may be better able to provide the child with physical proximity to an appropriate educational program, or whether one parent may be able to provide better medical coverage or care for a child who develops health problems.
Judges will often defer to the preferences of children 14 and over, if such a change is in the best interest of the child.
The court may consider modification if a custodial parent’s employment schedule has become unpredictable or changed drastically in a way that may be substantially detrimental to the child, or in the case of a major loss of income or sustained unemployment.
Stability & Environment
The court may consider evidence that a parent has demonstrated emotional instability or is generally unable to provide adequately for the child’s mental, physical or emotional needs. Specific circumstances could include frequent marriages, relationship changes, changes of residence, or other situations the court may deem unsafe or inappropriate.
The court may consider evidence that the custodial parent interferes with or fails to facilitate visitation with the other parent, or in other ways discourages a positive relationship between the child and the other parent.
The court may consider evidence that one parent is abusing alcohol or drugs. Such allegations will often require corroboration, which may be difficult to provide to the court.
VIOLENCE, ABUSE & NEGLECT
A child who is subject to or in danger of violence, neglect or abuse should be removed from the situation immediately. In case of physical or sexual abuse, an emergency custody modification motion can be filed. Custody may be lost by a parent who is involved in, facilitates or allows abuse of a child.
Violation of a custody order
Modification can also be requested when a parent has acted in violation of a custody order. In this situation, the parent will often be held in contempt of court. A violation will not typically lead to modification unless the interference is deemed substantial and ongoing to the extent that it constitutes a substantial change in circumstance. However, the court may order compensatory visitation for the missed time with the child, and the court may even schedule specific dates, after which the existing visitiation schedule is resumed.
Death of a Custodial Parent
If the custodial parent dies, custody is normally automatically transferred to the other parent. In cases where the will of the deceased custodial parent indicates a preference that custody pass to another individual, that person may petition the court for custody.
Contact Lurkis, Joyce & Del Bove today
The San Francisco & San Mateo child custody attorneys at Lurkis, Joyce & Del Bove are concerned with your child’s best interest, and understand that child custody disputes can be stressful and confusing, and may also have a decisive impact on your child’s future, and your role in your child’s life. Our attorneys are deeply experienced with all of the issues involved in a custody dispute.