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?
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.
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.