Child custody and visitation modifications in California are the topic of this issue of the weekly legal newsletter from LegalDocsPro. This is issue number 72. The author is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since...

1. 1Dear [FIRSTNAME],
The topic of the newsletter this week is the various exceptions to the changed circumstances
burden of proof for California child custody modifications. Also discussed is requesting a
modification of child custody and/or visitation orders in California. Several statutes and cases
outline the standards used and the burden of proof on the moving party. This issue will also
discuss the various exceptions to the changed circumstances rule as it relates to modifications of
child custody and/or visitation orders in California.
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In California, in child custody/visitation matters and child support, the family law court has
continuing jurisdiction and the matter thus remains pending even after entry of the underlying
dissolution, legal separation or nullity judgment. Marriage of Kreiss (2004) 122 Cal.App. 4th
1082, 1085.
Although the statutes governing custody adjudications only require 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. Montenegro v. Diaz (2001) 26 Cal. 4th 249, 256; see
also Marriage of LaMusga (2004) 32 Cal. 4th 1072, 1088.
In California, the trial court's exercise of discretion is far more limited when it effects a change in
existing custody orders than when it makes an initial custody decision.
Appellate courts are "less reluctant to find an abuse of discretion when custody is changed than
when it is originally awarded, and reversals of such orders have not been uncommon." Marriage
of McLoren (1988) 202 Cal.App. 3d 108, 113, in that case a modification giving the wife joint
legal custody where the original order gave the husband sole legal and physical custody was
reversed because the wife failed to present proof of change of circumstances affecting children's
welfare.
The "changed circumstances" rule is an adjunct of the statutory "best interests" test for
determining child custody. See Family Code §§ 3011, 3040(b). It furthers the paramount goal of
preserving the need for continuity and stability in custody arrangements, unless some

2. significant change in circumstances indicates a different arrangement would be in the child's
best interest. Montenegro v. Diaz, supra, 26 Cal. 4th at 256, see also Burchard v. Garay (1986)
42 Cal. 3d 531, 535, and Marriage of Brown & Yana (2006) 37 Cal. 4th 947, 956.
While the party seeking a modification of child custody must make a showing of changed
circumstances in many cases, there are various exceptions to this rule that should be carefully
considered and reviewed by any party contemplating requesting that the Court modify a child
custody and/or visitation orders in California. These exceptions are briefly discussed below.
The changed circumstances rule is triggered only after a "final" or "permanent" custody
adjudication. The ordinary best interest standard, without the additional changed
circumstances burden of proof, applies when the court makes an initial custody adjudication and
when it adjudicates custody following any temporary or interim custody order. Montenegro v.
Diaz, supra 26 Cal. 4th at 256, 257; see also Marriage of Burgess (1996) 13 Cal. 4th 25, 29, 37.
So as not to discourage parties from entering into custody stipulations, any doubts about whether
the parties intended a stipulated custody order to be a "final" or "permanent" custody
adjudication will be resolved against finality and against application of the changed
circumstances rule in subsequent proceedings to modify the stipulated order.
All indication is that, where the issue is disputed, a stipulated order will be deemed to be
temporary or interim in nature unless it clearly states it is a final judgment as to custody or words
to that effect. See Montenegro v. Diaz, supra, 26 Cal. 4th at 259, neither underlying stipulations
nor court's minute order contained "clear, affirmative indication" that parties intended stipulated
orders to be final judicial custody determinations; Marriage of Rose & Richardson (2002) 102
Cal. App. 4th 941, 952, (citing text).
In one case, a stipulated dissolution judgment awarded the parties' joint legal custody, mother
"primary physical custody" and father "reasonable visitation." The judgment also recited,
however, that "in the event the parties are unable to resolve their custody and visitation issues,
they shall agree upon a therapist or counselor to assist them. If after meeting with a therapist or
counselor, the parties remain unable to resolve their differences, they shall make an appointment
with the Conciliation Court prior to either party filing a request with the Court for a hearing on
the issue." Despite other boilerplate language in the judgment stating it was intended to be a final
settlement of the parties' rights and obligations, there was no "clear, affirmative indication" that
they intended the stipulated custody provision to be a final judicial custody determination. Quite
the contrary, the stipulated language warranted "the opposite conclusion the parents disagreed
and were attempting to resolve the custody and visitation issues." Marriage of Rose &
Richardson, supra, 102 Cal. App 4th at 951, 952.
As to physical custody, the changed circumstances rule applies when the modification request
seeks to remove custody from one parent and give it to the other. By contrast, no change of
circumstances need be shown as a prerequisite to altering only the co-parenting schedule which
is the amount of time the child spends in each parent's household under a joint custody order.
Proposed changes in parenting time are "not on a par with a request to change physical custody
from sole to joint custody, or vice versa"; the only standard the moving parent must meet in such

3. cases is the child's best interest. Enrique M. v. Angelina V. (2004) 121 Cal. App. 4th 1371, 1379,
1380; see also Marriage of Birnbaum (1989) 211 Cal. App. 3d 1508, 1513.
So long as the joint custody award itself is not being changed, the court has very broad discretion
to revise the "coparenting residential arrangement" where the parents are unable to agree and call
upon the court to intervene. Marriage of Birnbaum, supra, 211 Cal. App. 3d at 1518.
Despite what some people think, the changed circumstances rule does not apply when a parent
requests only a modification of the visitation arrangement regardless of whether the case
involves joint custody or sole custody. Because such a modification does not change "custody,"
the trial court considers a visitation modification solely under the child's best interests standard.
Marriage of Lucio (2008) 161 Cal. App. 4th 1068, 1077, 1080, (citing text) (collecting cases), in
that case a noncustodial parent who had supervised visitation was not required to show changed
circumstances in support of a request for unmonitored visits and additional visitation time not
amounting to "de facto joint custody”.
As shown by this issue of the newsletter, the changed circumstances rule as it relates to child
custody modifications in California has many exceptions, and does not even apply to
modifications of child visitation.
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Yours Truly,
Stan Burman
The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in
California and Federal litigation since 1995, and recently relocated to Asia.
Copyright 2013 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is
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intended to constitute legal advice.
These materials and information contained in this newsletter have been prepared by Stan Burman
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4. not act upon this information without seeking professional counsel.