Modification of Custody or Visitation in a California Divorce
These frequently asked questions explain your options for changing an established custody or visitation agreement.
- Under what circumstances can custody and visitation orders be changed within the state where they were obtained?
- What qualifies as a substantial change in circumstances?
Under what circumstances can custody and visitation orders be changed within the state where they were obtained?
After a final decree of divorce or other order establishing custody and visitation (such as a paternity decree) is filed with a court, parents may agree to modify the custody or visitation terms. This modified agreement (also called a "stipulated modification") may be made without court approval. If one parent later reneges on the agreement, however, the other person may not be able to enforce it unless the court has approved the modification. Thus, it is generally advisable to obtain a court's blessing before relying on such agreements. Courts usually approve modification agreements unless it appears that they are not in the best interests of the child.
If a parent wants to change an existing court order and the other parent won't agree to the change, he or she must file a motion (a written request) asking the court that issued the order to modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a "substantial change in circumstances." This requirement encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests.(back to top)
Here are some examples:
Geographic move. If a custodial parent makes a significant move, or the move will seriously disrupt the stability of the child's life, the move may constitute a changed circumstance that justifies the court's modification of a custody or visitation order. Some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contacts with their children. If no agreement is reached, courts in some states will permit the move unless it is shown that the child will be adversely affected. In other states, courts will carefully examine the best interests of the child and make a decision about which parent should have custody.
Change in lifestyle. Changes in custody or visitation orders may be obtained if substantial changes in a parent's lifestyle threatens or harms the child. If, for example, a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously depending on the state and the particular judge deciding the case.(back to top)