San Diego Family Law » Child Custody

When can a court modify child custody and visitation in San Diego?

Tara — Tue, 02 Oct 2007 15:31:13 +0000

Generally speaking, as long as a child is still under age 18, the court has the power to change custody or visitation schedules whenever modification is “necessary or proper” and in the child’s best interests. But, if there is already an existing final custody/visitation order in place, the court will require proof of a significant change of circumstances affecting the child and proof that modification is essential to the child’s welfare. This extra requirement applies in all California courts, including San Diego. The standard is similar in most states in the United States.

The reason for the extra requirement of significant change of circumstances applies because courts want their orders to be final. If court orders could be changed at any time, the orders would not be taken seriously and the courts would be burdened far beyond their capacity.

Every case must be looked at individually to determine whether there is actually a significant change of circumstances. A lawyer can research a large number of cases to determine how courts have ruled in the the past. Using this information, a lawyer can create a persuasive argument for or against a modification. In most cases, modification orders are complicated and require the assistance of counsel.

What factors do courts take into account when deciding who gets custody of the children?

Tara — Thu, 27 Sep 2007 16:48:29 +0000

The golden standard for determining which co-parent gets custody of a child is “best interest of the child.” However, this description is purposely vague. The reason for the vague definition is to allow courts to consider the details of every case. In California though, family courts must consider specific factors when determining the “best interest” a child.

The health, safety, and welfare of the child.
That children have frequent and continuing contact with both parents after the parents have separated, except where the contact would not be in the best interest of the child.
Any history of abuse by one parent or any other person seeking custody against a child, the other parent or other members of the household.
The nature and amount of contact with both parents (certain exceptions apply)
The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent.

Numerous books, articles and case decisions directly address the definition of “best interests.” Since the definition depends so heavily on the particular facts in a given case and their application to existing law and policy, it is advisable to contact a lawyer to help you with your particular situation.