Tag: family law

Custody and Visitation Orders Part V: Substantial Change of Circumstances

Posted by Sharif Faust on March 11, 2024

Yasaman Sharif, Esq.

by Yasaman Sharif || 11 March 2024 ||

This is the fifth in a series of posts relating to Child Custody and Visitation. In our fourth post, we explored what the term “physical custody” means in a court’s order on custody and visitation. Of course, as mentioned in our previous posting, the content of this blog is provided for informational purposes only, and we are not offering any legal opinions. The results, in any case, depend upon the specific facts in that case, so it is important that you consult with a lawyer you trust.

After a court makes a “final” custody and visitation order for a minor child, it becomes much more difficult for a parent to request the court to change that custody and visitation order in place. To be “final”, the court order must clearly state it is final by including words “final,” “permanent,” or “judgment.” Montenegro v. Diaz, 26 Cal. 4th 249, 259 (2001); In re Marriage of Burgess, 13 Cal. 4th 25 (1996).

Standard of “Substantial Change of Circumstances”

Once there is a “final” custody and visitation order in place, the requesting parent must show a “substantial change of circumstances,” which is a much more difficult standard than the “best interest” standard.

If you are the parent who is asking the court to change the “final” custody and visitation order in place, you must show to the court there has been a significant change of circumstances affecting your child in such a way that makes the requested change essential to your child’s welfare. The court will then consider if your alleged new circumstances show a significant change from previous circumstances, which existed at the time the court’s “final” custody decision was made. If you can convince the court that the circumstances relating to the child have significantly changed, it will re-evaluate the “final” custody and visitation orders in place.

Thus, after the court decides that a particular custody plan serves your child’s best interest , the court is not required to reexamine that issue. It will preserve the custody arrangement in place, unless you can show that the circumstances have changed so significantly that a different custody plan would be in your minor child’s best interest.

But as long as the court has not made a prior “final” order regarding child custody or visitation, the best interest of the minor child continues to be the applicable standard. If you are wondering what “best interest” means, you should check our second posting in this series.

Custody and Visitation Orders Part IV: Physical Custody

Posted by Sharif Faust on February 14, 2024

Yasaman Sharif, Esq.

by Yasaman Sharif || 14 February 2024 ||

This is the fourth in a series of posts relating to Child Custody and Visitation, more specifically physical custody. In our third posting, we explored what the term “legal custody” means in a court’s order on custody and visitation. Of course, as mentioned in our previous posting, the content of this blog is provided for informational purposes only, and we are not offering any legal opinions. The results in any case depend upon the specific facts in that case, so it is important that you consult with a lawyer you trust.

In California, Physical custody of a minor child deals with the physical residence of the minor child and with which parent the child should live. Similar to legal custody (discussed in our second posting), physical custody can be sole or joint.

San Diego from Downtown to Balboa Park, Family Law Attorney Office — View of San Diego from the Sharif | Faust Office

Sole Physical Custody

In a case of sole physical custody, the minor child will live, all or most of the time, with one parent who the court finds is suitable to take care of the child (custodial-parent). If the court decides that it is in the best interest of the child, it may allow the other parent (non-custodial parent) to have visitation time with the child based on a parenting plan.

Joint Physical Custody

In a case of joint physical custody, the child will live with both parents. In this case, the court decides it is in the best interest of the child to live with both parents. This is the best scenario because it is public policy of California to ensure that a minor child continues to have frequent and continuing contact with both parents after they have ended their relationship or divorced. But at the end of the day whether the court decides that the child should live with one or both parents depends on what is in that particular child’s interest.

Conclusion

In deciding whether physical custody of the minor child should be sole or joint, the court initially considers the best interest of the minor child. But if you want to change a “final” custody and visitation order that is already in place, the court will apply a different standard known as “a substantial change of circumstances.”

If you are wondering what “best interest” means, you should check our second posting in this series. The term “substantial change of circumstances” will be discussed in a later posting.

Custody and Visitation Orders Part III: Legal Custody

Posted by Sharif Faust on May 22, 2020

Yasaman Sharif, Esq.

by Yasaman Sharif || 22 May 2020 ||

This is the third in a series of posts relating to Child Custody and Visitation. In our second post we explored what the term “best interest” means in a court’s order on custody and visitation. Here we will discuss what Legal Custody means. Of course, the content of this blog is provided for informational purposes only, and we are not offering any legal opinions. The results in any case depend upon the specific facts in that case, so it is important that you consult with a lawyer you trust.

Overview

In California, Legal custody deals with parents’ rights and responsibilities to make important decisions for their minor child. These important decisions relate to the child’s health, education, and welfare. Legal custody determines who makes important decisions about which school the child attends. Legal custody also includes the selection of a doctor, dentist, or other health care professional. It also includes the decision of when to begin and end health services.

Sole Custody or Joint Custody

Legal custody may be sole or joint. If a court grants sole legal custody to one parent, that parent is solely suitable to make important life decisions for the minor child. The Court will only grant sole custody if it finds that only one parent is suitable to make the important decisions. But if the court finds that both parents are suitable to make these important decisions for their minor child, the parents will share joint legal custody. In a case of joint legal custody, the parents are required

to consult with each other about the minor child’s health, education, and welfare. The court expects them to make decisions together.

What the Court Considers

In deciding whether legal custody should be sole or joint, a court considers the best interest of the minor child. But if you want to change a “final” custody and visitation order that is already in place, the court will apply a different standard known as “a substantial change of circumstances.” The term “substantial change of circumstances” will be discussed in a later posting.

Custody and Visitation Orders Part II: Best Interest of the Child

Posted by Sharif Faust on May 22, 2020

Yasaman Sharif, Esq.

by Yasaman Sharif || 22 May 2020 ||

This is the second in a series of posts relating to Child Custody and Visitation. In our last post we explored what goes into a court’s orders on custody and visitation. In this post we will explore what the term “best interest” or “best interest of the child” means in these sorts of decisions. Of course, the content of this blog is provided for informational purposes only, and we are not offering any legal opinions.

Overview

A parent who seeks legal custody or physical custody and/or visitation orders in California must file a request for order (“RFO”) with the court. During the initial custody and visitation hearing, the court considers the “best interest” of the minor child. The factors that the court considers in making its decision are:

The health, safety, and welfare of the minor child;
Any history of abuse by one parent against the minor child or against the other parent;
The nature and amount of the minor child’s contact with both parents;
The parent who is more likely to allow the minor child frequent and continuing contact with the other parent.

Best Interest: Health, Safety, and Welfare of the Child

It is the public policy of the state of California to ensure that the health, safety, and welfare of the minor child. This is the court’s primary concern in ruling on an order regarding the custody or visitation of the minor child. It is also public policy of California to ensure that a minor child continues to have frequent and continuing contact with both parents after they have ended their relationship or divorced. The Court will also encourage both parents to continue sharing the rights and responsibilities of the minor child. This means that unlike what some parents may expect, the Court looks at all the circumstances bearing on the best interest of the minor child, and not those concerning the interests of the parents.

When the Standard is Applied

The best interest analysis applies whether you as a parent seek legal custody or physical custody of your child, or you simply seek a visitation plan that would allow you to spend some quality time with your child. After the Court makes its decision, however, the Court will use a different standard when a parent wants to modify the order. In those situations, the standard is known as “a substantial change of circumstances.” This term will be discussed in a later posting.

Tag: family law

Custody and Visitation Orders Part V: Substantial Change of Circumstances

Standard of “Substantial Change of Circumstances”

More Questions?

Custody and Visitation Orders Part IV: Physical Custody

Sole Physical Custody

Joint Physical Custody

Conclusion

More Questions?

Custody and Visitation Orders Part III: Legal Custody

Overview

Sole Custody or Joint Custody

What the Court Considers

More Questions?

Custody and Visitation Orders Part II: Best Interest of the Child

Overview

Best Interest: Health, Safety, and Welfare of the Child

When the Standard is Applied

More Questions?