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How to Modify Custody Order in California?

After a divorce has been finalized, either spouse may still be able to challenge certain decisions made by the court. They may also be able to change certain obligations and rights.

There are two types of child custody orders in California:

  • Temporary child custody orders
  • Permanent child custody orders

Temporary and permanent child custody orders can be modified if there has been a “significant change in circumstances” since the previous “final” child custody order was entered. Should a custody order not be designated as the final child custody order, then it may be changed based on the “child’s best interests.”

The above terms are further explained here:

  • A “child’s best interests” test involves a court considering any and all factors relevant in determining what is best for a child
  • A “significant change of circumstances” test may only involve the court looking into whether there has been a significant lifestyle change of one or both parents since the date of the previous order

In this situation, the court will not modify the child custody order even if it is believed that a change in that order would be in the child’s best interests.

When a Parent Moves Away/Relocates

A parent may choose to relocate or change the child’s residence. In these situations, a child custody order will have to be modified to determine who the child will primarily reside with.

A parent does not need to show that they need to move. The opposing parent must prove that the move would be harmful to their child and that it would not be in the child’s best interests.

When a court looks into the issue of moving away or relocating, they will look at:

  • The willingness of both parents to place the best interests of the child first
  • The child’s relationship with each parent
  • The extent of the shared custody
  • The reasons behind the move
  • The distance of the move
  • The age of the child

Modifying a Child Support Order

The courts calculate guideline child support using a program that takes various factors into account, such as:

  • The income of both parents
  • The number of deductions being made
  • The amount of time a parent spends with the child

A court may or may not decide to deviate from the results of the program if they believe that there is “good cause” to do so (although most courts will not do so).

Child support orders are often changed for one or both of the following reasons:

  • There has been an increase or a decrease in the income of either parent
  • There has been an increase or a decrease in the amount of time each parent spends with the child

The courts may deviate from the guideline child support if one parent is a “high-earner.” Should a parent be determined as being a “high-earner,” the court may then make a finding whether or not it is in the child’s best interests to receive more child support than what is generated by the computer formula.

Child support orders are modifiable if circumstances support the change. As with child custody orders, even if a child support order says it is non-modifiable, it can be changed (i.e. parents can agree to pay less than the guideline level and then petition the court to increase the amount of support to guideline level).

When a Child Support Order Cannot Be Changed

A child support agreement where an excess of the guideline child support is being paid cannot be decreased unless there has been a decrease in the payor-spouse’s income and the decrease has resulted in a significant change in circumstances.

The court also cannot retroactively increase or reduce the amount of child support paid relative to the period before you filed the request to modify the child support order.

Modifying a Spousal/Alimony Support Order

A spousal support order can be modified as long as it does not clearly indicate that it is a non-modifiable order. In these situations, the courts are not able to increase or decrease the amount of support you receive, regardless of hardship or changes that have occurred.

Spousal support orders are changed due to a “change in circumstances.” The “change in circumstances” test may look into whether or not a former spouse is now able to earn an income, or if he or she cannot find employment. Another common reason for a modification is if the supported spouse chooses to move in and live with a third party.

An increase in earnings alone typically does not justify an increase in spousal support. For a supported spouse to earn more in these situations, he or she must prove that the spousal support ordered by judgment was insufficient and did not allow the supported spouse to enjoy the marital standard of living at the time the judgment was entered.

Lavinsky Law helps parents and former spouses enter into fair agreements and modify existing terms of judgments. Our law firm focuses on reducing friction between all parties, easing the emotional burden on children, and ensuring that the rights of our clients are protected.

Brighter Days Are Ahead; if you have a question or would like more information about post-judgment modifications, we welcome you to contact us for a free consultation at (310) 929-6411. Our attorney can help you with all your needs.

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