Modification of Custody and/or Visitation
There is no such thing as a permanent order when it relates to custody and visitation. So long as a child is a minor and not emancipated, either party has access to the court for purposes of modifying a court order. Parents cannot terminate the court’s jurisdiction—even by written agreement between the parties.Legal Basis
In order to request a modification of legal custody and/or visitation, the moving party must show a substantial change of circumstances. There is a general exception to the “change of circumstances rule” rule: the prior order was a pendent lite order (“pending litigation” order).
Some examples of “substantial change in circumstances” with regarding to change of custody:
- Parenting of custodial parent is adversely affecting the child, e.g. providing poor diet, neglecting child, parent has become an alcoholic;
- New stepparent emotionally abusing child;
- Custodial parent is violating custody order, e.g. engaging in corporal punishment of child;
- Custodial parent is allowing minor child to engage in dangerous activities, e.g. staying out past midnight on school-nights, under-age drinking, etc.
Some examples of reasons to modify visitation order:
- One of the parties has moved further away, causing 50/50 visitation to be impractical;
- Parties wish to stipulate to a modification of visitation
- Parties wish to change the visitation schedule to reflect actual circumstances, e.g. prior order issued when child was two years old. Child is now six years of age and is starting kindergarten;
An individual can hire Mr. Garrett to assess whether an individual’s current set of facts justify a modification of custody and/or visitation. If a party’s facts reflect eligibility for modification, Ms. Garrett is able to provide the following additional legal assistance:
- Identifying the strengths and/or weaknesses of their case;
- Explaining the procedural requirements for a modification, to include, but not limited to, forms required, deadline dates, follow up required, etc.;
- Explaining the substantive law relating to modification issues
- Coaching the individual with respect to preparing the motion documents, preparing the Income & Expense Declaration, preparing the supporting declaration and identifying the types of evidence that are useful in advancing the petitioner’s claims
- Coaching the individual to prepare for his or her hearing—providing an overview of the hearing process, providing tips and strategies in preparation for the hearing;
- Explaining the follow up needed post-hearing, to include, preparation of the Findings & Order After Hearing, steps needing additional follow up to ensure all issues are resolved;
- Identifying the weaknesses and “red flags” of the other parties case, to include but not limited to, analyzing their supporting declarations or responses, analyzing their Income & Expense Declaration, reviewing their support calculations (DissoMaster or SupporTax);
- Answering any legal questions in connection with custody and/or visitation.
For further information on this topic, please visit and subscribe to Ms. Garrett’s California Family Law and Divorce Blog