Standard to Change Child Custody Arrangement Depends on the Nature of the Court Order

silhouettes-7-1282782-m.jpgUnder California law, San Diego parents are entitled to change or modify a court-ordered child custody arrangement, under certain circumstances. As a general matter, judges are granted broad discretion when deciding whether to grant a request for modification. When a custody arrangement is embodied in a “final order” of the court, established law requires that there be a “substantial change of circumstances” to justify the change. Many issues that arise in custody disputes are complicated and require close attention to applicable laws and procedures. If you are confronting a child custody matter of any sort, you are encouraged to contact a local, experienced family law attorney who will work diligently to protect your rights, while considering the best interests of the children.

There are cases in which the “substantial change of circumstances” standard does not apply, according to a recent court decision. The issue seems to focus on whether the order was intended to be “final” by both parties. Certain “stipulated” custody orders are not considered to be final by the parties involved. In order to modify such orders, the courts in California would apply the “best interests of the child” standard, rather than a substantial change in circumstances standard. In Thompson v. Krippendorf, the California Court of Appeals pointed out that stipulated custody orders may be final judicial custody determinations for purposes of the changed circumstance rule only if there is a clear, affirmative indication the parties intended such a result.

In this case, the parents had two sons. The trial court granted temporary physical custody to the father, and the mother was permitted supervised visitation and ordered to pay child support. A later order directed a full custody evaluation of the children. A doctor conducted an expert evaluation under Evidence Code section 730 and recommended that custody be awarded to the father. In response to the evaluation, the trial court awarded temporary physical custody of the children to the father and permitted the mother to have supervised visitation, pending a recommendation conference. Later, the parties agreed to a stipulated order on custody and visitation that adopted the expert’s recommendations. Among other things, the mother agreed to get therapy and attend parenting classes. The trial court made the stipulated agreement an order of the court. Several months later, the mother sought modification of the custody and visitation order, requesting joint physical custody and unsupervised visitation.

The trial court denied the mother’s request, citing that there had not been a substantial change in circumstances to justify the modification. The appellate court ruled that the lower court applied the incorrect standard, finding that there was no clear, affirmative indication that the parents intended for the stipulated custody order to be final. The court clarified that where a final judicial determination has not been rendered, a request for a change in custody is to be determined pursuant to the best interests standard.

While this is an unpublished opinion, and courts and parties may not rely on or cite the decision, it is likely that judges will take note of the legal reasoning underlying the court’s ruling.

Parents with questions about child custody matters may contact Doppelt & Forney. Mr. Doppelt is a knowledgeable family law attorney with more than 20 years of experience representing parents in Southern California. Doppelt & Forney serves clients in Linda Vista, Encinitas, Scripps Ranch, San Diego, and throughout Southern California. For a consultation with a dedicated family lawyer, contact Doppelt & Forney through the law firm’s website or give us a call toll-free at (800) ROY IS IT (769-4748).

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