Steven Fernandez |

Modification

During their adult lifetimes, most people relocate about twelve times. Some people move to get away from family, be closer to friends, or to get a fresh start in life; many more people relocate because of a job change or to be closer to family. Most all these moves occur before age 50, so each relocation often brings challenges in terms of child custody and family support.

A few states have very restrictive laws that make it difficult to modify family law orders in these situations. But California’s laws are rather generous, possibly because the Golden State has a large geographic area and a large population that is also rather youthful.

Child Custody

California is home to the country’s first joint custody law, so the principle that children should have consistent and meaningful contact with both parents, at least in most cases, is deeply embedded in the law. As a result, Family Code 3022 simply states that a court may make a “necessary and proper” order “at any time” during the proceedings. So, there are no waiting periods or specific requirements. Most child custody modification actions seek theoretical changes (i.e. the amount of each party’s parenting time) or practical changes (i.e. adjusting the schedule so it conforms to the amount of parenting time).

It is not easy to change primary custody, because in modification actions, anything that occurred prior to the original order is irrelevant; moreover, there is a strong presumption that the existing order is correct and that a change would be highly disruptive to almost everyone involved. To modify custody, the movant must show:

  • Health and Safety: These circumstances must have significantly changed since the prior order. For example, Mother may have developed an alcohol problem or Father may have overcome a substance abuse issue, and both these things directly affect the children’s safety and welfare.
  • Best Interest: A number of factors go into this decision, most prominently family stability and consistent contact with both parents.
  • Children’s Preference: There is no age cut-off in California, so the judge may consider or disregard any child’s preference regardless of age. As a rule of thumb, most judges do not consider such opinions if the children are 7 or younger, weigh them carefully if the children are between 8 and 12, and defer to such preference, as long as it is in their best interest, if the children are over 13.
  • Co-Parenting Skills: Most judges frown on parents who seem unable or unwilling to work with the other parent to foster a healthy parent-child relationship. Unfounded abuse allegations are a special concern, but everyday “trash talk” about the other parent is almost equally problematic.

There is an old adage that “possession is nine-tenths of the law,” and so whoever has primary custody is likely to keep it unless there are very serious issues regarding physical and/or emotional health and safety.

Relocation-based visitation modification actions are a little more straightforward, because in most cases, the movant simply wants to keep the balance of parenting time prescribed in the existing orders. Assume Mother and Father both lived in Los Angeles when they divorced, their three children stayed with Mother, and Father had alternating weekend visitation and two hours every Wednesday. If Mother and the children move to San Diego, the two-hour Wednesday visitation is most likely unworkable. All other things being equal, if Father asked for his weekends to go from Saturday-Sunday to Thursday-Monday to compensate for the lost weekday, a court would probably approve.

Procedurally, Father would file his motion in Los Angeles County, because that’s the court with jurisdiction, but Mother could probably have the case moved to San Diego County, since that’s where the children reside.

Family Support

These provisions are in Family Code 4050 et seq. Child support orders can be modified based on changed circumstances, and some typical exampled include:

  • Income Change: Only the parent’s income is relevant; the income of a new stepparent, or the lost income from a divorcing stepparent, does not count. The income change must also be permanent and unanticipated. The parent must change jobs in good faith, because Father cannot leave his job as an engineer and become a janitor simply to reduce his child support obligation.
  • Incarceration: The state automatically suspends child support obligations for 90 days, in most cases. If the incarceration lasts longer or if the individual’s job status changes after release, there must be a motion to modify.
  • Parenting Time Change: If the judge denied Father’s motion to modify visitation in the above Los Angeles-to-San Diego example, Father could probably get his child support payments reduced because his parenting time is reduced.
  • Financial Needs Change: If the children are no longer in daycare, such a change could justify a modification. Bear in mind there is a difference between “needs” and “wants,” and the parents do not always agree where to draw the line.

In most cases, the court will simply use the new information to reassess the guideline amounts.

Spousal support can be modified per Family Code Section 4320 et seq. The same factors that govern the initial award also apply in modification actions. Essentially, the court must balance the obligee spouse’s financial need against the obligor spouse’s ability to pay, and either the need or ability can change over time. Other factors include the length of the marriage, custody of minor children, relative age and health of the spouses, and “any other factors the court determines are just and equitable.”

A job change or residence change often means that visitation and/or support orders must be changed as well. For a free consultation with an experienced family law attorney in Los Angeles, contact Fernandez & Karney. Mr. Fernandez and Mr. Karney are both Board Certified family law specialists.