Modifying Family Law Court Orders

After a family law judge makes court orders in a case, such as child custody orders, child visitation orders (parenting time), child support orders, or spousal support (alimony) orders, one of the parties subject to those order may want to modify or change them, if possible.

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In family law, a request for orders (RFO) to modify an existing court order is actually quite common. This is especially true in child custody, child visitation (parenting time), child support, and spousal support cases.

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Child Custody: A parent may seek to modify an existing child custody order when that order is no longer in the best interest of the child due to a change in circumstances since the existing order was issued. A request to modify child custody may include a request to change legal custody (sole or joint) or physical custody (sole or joint).

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Note: The best interest of the child means the court will focus primarily on the child’s health, safety, welfare, and the preference for frequent and continuing contact with both parents, if possible.

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Common reasons for requesting modification of child custody orders, include: 1) a parent wants to move with a child over the objection of the child’s other parent, 2) a parent is unable or unfit to care for a child due to a substance abuse addiction, incarceration, or mental or physical disability, 3) the child visitation schedule significantly changes for some reason, and 4) the child wishes custody orders to be changed.

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Note: A court will not entertain the wishes of a young child as to whom he or she wants to live. However, as a child becomes older and more mature, the court may consider the child’s wishes as to whom he or she wishes to live. Generally speaking, the age at which a family law judge will consider the wishes of a child as it relates to whom the child wants to live, is fourteen. This means that a fourteen (14) year old child may usually be allowed to express to the court his or her wishes as it relates to legal or physical custody, but of course, the court does not have to follow the wishes of a fourteen year old child.

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Child Relocation Requests: Child custody modifications based on a child relocation request, also known as child move away request, is a complicated process because the modification of the current orders are usually significant. It is best to seek the advice of a family law lawyer before requesting any modification of a child’s residence, especially if that change in residence is to a location outside of California.

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Mediation:  A request to establish or modify child custody or child visitation orders usually requires the child’s parents to attempt to resolve their disputes in mediation prior to presenting their case to the family law judge. There are exceptions to the mediation requirement in cases where the child’s parents’ can agree, outside of court, as to any change in the court’s orders, so long as the court approves of the changes before those changes actually take place. There are also exceptions to the mediation requirement in cases where the parties have previously agreed, and the court has approved, to the modification of a child’s visitation or vacation schedule. Finally, there are limited exceptions to the mediation requirement when the modification of child custody, child visitation, or child support occurs in the context of an emergency (Ex Parte Hearing).

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Note: A change in income of either parent is not a valid basis upon which to request a modification of child custody or child visitation orders. When there is a non-trivial change in a parent’s income or child visitation schedule, the proper request is for an upward or downward modification of child support, not a modification of child custody.

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A Child’s Preference: There is no minimum age requirement that a child must meet before a judge will consider the minor child’s preference as to child custody or child visitation, so long as the child demonstrates sufficient age and capacity to form an intelligent preference as to custody. Generally speaking, when a child reaches the age of fourteen (14), the family law judge will usually, but not always, entertain the wishes of the minor child as it relates to child custody or child visitation.

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Death of a Parent: When a parent with legal or physical custody of a minor dies, the surviving parent is automatically deemed to have sole legal and sole physical custody of the child or children unless the surviving parent’s rights have previously been terminated (termination of parental rights). However, third parties, such as grandparents or stepparents, might be able to establish child custody or child visitation rights to the child of the deceased parent. If the parent who dies had sole legal custody of the child because of an allegation that the surviving parent was negligent or abusive to the child, then the department of child protective service (CPS) may file a petition in juvenile dependency court to have the surviving parent assessed as to his or her fitness to care for the child.

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Child Visitation (Parenting Time): A parent may wish to modify an existing child visitation order when the existing visitation order is no longer in the best interest of the child due to a change in circumstance since the existing child visitation order was issued. All types of child visitation orders may be modified, including fixed, reasonable, supervised, therapeutic, and more.

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Common reasons for modifying a child visitation schedule include: 1) residential or employment relocation, 2) a parent’s ability to assist his or her child in the child’s education, 3) a parent’s rehabilitation status regarding child abuse, child neglect, or substance abuse issues, and 4) the child preference in modifying the schedule (See Child’s Preference above).

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Note: When a child’s father is not married to the child’s mother at the time of the child’s birth, then there is no presumption that the child is the purported father’s biological child. In these cases, the child’s parents will first need to file a paternity suit before the father or mother may request court-ordered child custody, child visitation, or child support from the child’s other parent.

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Child Support: An existing child support order may be modified to reflect a non-trivial change in the parent’s income, visitation schedule, or health care costs of the child. “Non-trivial” is decided on a case by case basis.

 

For example, if the child’s mother is receiving court-ordered child support from the child’s father, and the mother receives a one percent (1%) increase in income, then the child’s father’s request to modify his child support payment downward will not likely succeed.

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Note: when a parent has a fluctuating income, then the court will usually average the parent’s income over the period of the prior twelve (12) months in order to create a base income which is used to calculate child support. There is usually no need to file child support modifications, by either party, every time there is change in income, at least not when the family law judge has already calculated the income fluctuations.

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Spousal Support (Alimony): A party may want to modify (raise or lower) his or her spousal support obligations to reflect a change in circumstances, such as the payer’s ability to pay spousal support, the payee’s continued need for spousal support, or any other circumstances the court determines to be fair and equitable. Spousal support modification requests are common where one spouse is paying support to another spouse who refuses to find gainful employment which could lower his or her need for continued support.  Spousal support modification requests are also common when a spouse who is receiving alimony remarries or cohabitates with another person in a romantic relationship.

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Note: Spouses may agree, in writing, to terminate the court’s jurisdiction to establish or modify spousal support through a Marital Settlement Agreement (MSA), Prenuptial Agreement, or Post-nuptial Agreement.

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Modification of Orders with Agreement

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If the parties agree to modify existing family law court orders they can usually do so by written agreement (stipulation) and without mediation (for child custody and/or child visitation cases), so long as the family law court approves the agreement.

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Note: Parents cannot divest the court’s power to make orders regarding child custody, child support, or child visitation. Therefore, prenuptial or post-nuptial agreement terms that attempt to impede the court's power to establish or modify child custody, child support, or child visitation is invalid and unenforceable.

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Also, a child’s parents may not agree to modify court-ordered child support without court approval.

 

For example, if the child’s parents agree to forgo child support in exchange for child visitation, the court will not enforce that agreement. In fact, an agreement to forgo child support, whether included in a prenuptial agreement, a post-nuptial agreement, or a marital settlement agreement, is likely to be considered invalid and against public policy as it is not in the best interest of the child to divest the court of its power to modify the rights of the child.

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Modification of Orders without Agreement

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Temporary Orders: To modify a temporary order (interim order) the moving party must prove to the court that there has been a non-trivial change in circumstance since the issuance of the order sufficient to justify its modification. For temporary orders related to child custody and/or child visitation, the moving party must also prove that the new orders would be in the best interest of the child.

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Final Judgment Orders: To modify child support or spousal support orders that were made part of a final judgment, the requesting party must prove there has been a non-trivial change in circumstance since the issuance of the existing order; however, for final judgment orders regarding child custody or child visitation, the moving party must also prove that the change in circumstance was significant (not just non-trivial) and that the new orders would reflect the best interest of the child.

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Jurisdictional Issues

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Generally, the county of the state where family law orders are issued has exclusive and continuing jurisdiction to modify those order. It may be possible to change the jurisdiction depending on 1) the circumstances of the parties, 2) the type of orders sought to be modified, and 3) the location of the proposed jurisdiction.

 

Jurisdiction issues in family law cases are complicated. Always seek the advice of an experienced family law attorney before attempting to change jurisdiction in a family law case.

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To learn more about how to modify family law court orders, contact our divorce and family law attorneys today for a free consultation. Our divorce and family law attorneys are available six days a week to answer you questions (Mon - Sat). We have successfully handled every type of family law case, including modifying child custody, fathers' rights, stepparent adoptions, grandparents' rights, spousal support, paternity case, CPS defense cases, and more. Call today!

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909-725-8199

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