Modifying Family Law Orders In California

Most civil disputes end when the judge’s gavel falls. Family law cases do not really “end” at this point, although they may lie dormant for a period of months or even years. Almost inevitably, because of a job change, relocation, remarriage, or other life event, the old orders become either somewhat cumbersome or totally irrelevant. When change happens, many parents choose to make informal “side agreements” with one another rather than officially change the court orders. While it is normally a good thing for parents to work out disputes on their own rather than filing court papers, these “side agreements” are totally unenforceable, and if one parent unilaterally decides to back out of the understanding, the other parent has no recourse whatsoever.

The bottom line is that divorce modification is nearly always a necessary part of the overall process. What do parents need to show in court to change the orders, and what kinds of changes are the judges likely to make?

Custody/Visitation Modification

Under California law, family law judges have the power to create any custody or visitation order that is “necessary or proper.” In practical terms to modify a prior order, the moving party must show changed circumstances that impact the best interests of the children.

Movants often base their actions on remarriage, which is undeniably a changed circumstance. Although the kids in The Brady Bunch always got along swimmingly, life does not always imitate art, and new step-siblings combined with a new living environment is often a stressful situation, especially for certain children. However, remarriage in and of itself may not be sufficient basis to modify prior custody orders. As divorce lawyer Hossein Berenji explained, “Father may not like Mother’s new husband and may even rightfully believe that he is a bad influence on the children, but unless Father has evidence to prove that the children’s new environment is detrimental to their well-being or there are other developments aside from the remarriage, his motion to modify will likely fail.”

Removal or onset of disability is also a changed circumstance, and unlike remarriage, it is likely to have a substantial effect on the best interests of the children. If Mother overcomes a substance abuse problem, the court is likely to either expand visitation or at least remove some contact conditions, like substance abuse counselling. Conversely, if Father is diagnosed with a long-term debilitating illness, it is reasonable to question his physical parenting abilities.

Move-Aways

One of the reasons divorce orders need to be modified so frequently is because many people relocate every few years, usually for job reasons but sometimes for legitimate personal reasons, like being closer (or further away) from family members. Especially in Southern California, almost any move significantly impacts a family’s weekly schedule, even if it’s technically a local move from one side of town to the other side.

In the rare sole custody cases, In Re Brown and Yana (2004) usually controls. The noncustodial parent has the burden of proof to show that the move would be detrimental to the child (as opposed to detrimental to the parent) before the judge even holds an evidentiary hearing. In other words, unless noncustodial parents show that the moves would be dangerous to the children, they probably cannot stop them.

According to In Re Marriage of Seagondollar (2006), the court basically makes the opposite presumption in joint custody cases. Instead of assuming that the parent has a good reason for the proposed move, the judge assumes that the parent does not have any such reason, and to convince the court otherwise, the movant must prevail in an evidentiary hearing and hope for a favorable DCFS report.

Child Support Modification

Much like custody orders, a court may modify child support orders “at any time as the court deems necessary.” That usually means either a change in the guideline amount — and the guidelines have been amended a number of times in the last twenty-five years — or changed circumstances. Most all motions to modify use the latter, and changed circumstances can include:

  • Permanent or long-term income increase or decrease (a streamlined procedure may be available under Family Code 3660),
  • Passage of time (older children are generally more expensive to raise than younger ones), and
  • Change in parenting time patterns.

Child support modifications must be made in good faith, so an obligor spouse cannot quit high-paying jobs to avoid paying child support.

About the Author: Hossein Berenji is the founder and owner of Berenji & Associates, a Los Angeles based family law firm. Mr. Berenji and his team have over 25 years of combined experience. If you would like further information, please contact Mr. Berenji by visiting his website.

9 Legal Tips For When Going Through a Divorce

Whenever you are going through divorce proceedings, it can be really helpful if you know a few legal tips. These kinds of tips can make the transition to single life much easier.

Divorce law can be extremely complicated. To help you, we put together a list of 9 tips to follow during a divorce. If you need more information, you should consider calling an attorney that handles divorce in your area.

  1. Make sure your spouse isn’t attempting to sell-off any assets during the divorce proceedings. If they do, you may be entitled to half of the proceeds.
  2. Similarly, you do not want to sell off any of your assets during a divorce. This could end up really making the whole divorce proceedings really complicated. And the money you gain from selling off your assets will have to be split with your wife.
  3. While a lawyer is not necessary for a divorce, it may be a good idea to hire one. A lawyer will be able to help you make the whole process of divorce go much smoother, so you should have no trouble at all going through a divorce when you hire a lawyer.
  4. It is always a better idea to hire a divorce lawyer. These kinds of lawyers will specialize in divorce law. So you can be sure that they know every kind of legal detail to pay attention to. They can help you with child custody among other things.
  5. Speaking of child custody, a lot of factors can affect who gets custody of the children. Any history of drugs or abuse can severely decrease your chances of getting custody.
  6. Try to maintain clear lines of communication with your spouse. You will need to do so to ensure that everything goes smoothly during your divorce. Not talking to your spouse just means a longer divorce process and can be detrimental to the children.
  7. Do not get married while you are going through a divorce. Any kind of the third party during a divorce will make the whole process of the divorce go on for much longer. You should wait until after the divorce has finished getting married.
  8. Paying alimony can be a smart financial move. Alimony is tax deductible. And if you agree to pay alimony you are actually making the whole process of divorce go much easier. So it may be a good idea to negotiate alimony terms with your spouse or their lawyer.
  9. Remember that child support is for your child and not your spouse. Do not try to punish your spouse by withholding child support.

How to Find a Good Divorce Lawyer

If you are going through a divorce, it may be a good idea to hire a divorce lawyer. Unlike other attorneys, they will instead specialize in divorce and family law. So they will know the ins and outs of the legalities of divorce. With their help, you can speed up the divorce process and maybe achieve a better deal when it comes to child support or alimony. As such, it can be a really good idea to hire one. However, it can also be difficult to find one in the first place. Fortunately, for you, there is this guide for finding a competent divorce lawyer.

1. Hire an Attorney That Only Handles Family Law

A lawyer that is experienced in family law should be your first choice. You should not look into a lawyer that handles real estate, or even a criminal defense attorney. Always go for a family law lawyer. By doing so, you will get their knowledge and expertise when it comes to divorce law. And divorce law is extremely complicated, so it is best to go to an expert on the subject, and not one that is an expert on real estate law. You should always hire a lawyer that specializes in family law if you want to hire them specifically for your divorce. A great place to start is the State Bar website of the state you live in. For example, a California resident would visit here.

2. Shop Around – Meet with Several Attorneys

Shop around for a competent divorce lawyer. You should not settle on the first one that you find. It can be a good idea to set up meetings with at least two or three other lawyers, especially if you want to find a competent one. You can canvas different kinds of lawyers, to get a sense of their different skill sets. By interviewing many divorce lawyers, you may be able to select the best one out of t he bunch.

3. Ask Friends For Recommendations

And as always, word of mouth can actually point you to the right divorce lawyer. You can ask around for anyone that can recommend a good lawyer that can handle divorce cases. You may be able to stumble across one this way. You can try asking someone you know that has gone through a divorce. They may be able to suggest someone that you can hire to handle your own divorce case. So do not hesitate to search for a divorce lawyer by asking around. The chances of finding the right one are pretty high when you simply search for one based on word of mouth.

By following these guidelines, you should be able to hire a very reliable and competent divorce lawyer. If you want to go through the least amount of trouble when you are undergoing a divorce, you should look into hiring one. A divorce lawyer’s services could be invaluable whenever you are going through a divorce. And you may be able actually to go through a pain-free divorce if you hire the right kind of lawyer to handle your case. Do not hesitate to contact the services of a divorce lawyer if you find one that you can trust, you will be making a very good decision if you hire them.