If a custody order is already in place, how can I get it changed?
If you have a final custody order already in place, you can petition the judge to make changes to it (modify it) only if there has been a substantial (significant) change in circumstances since the custody order was issued. The judge may modify the custody order if, based on these new circumstances, s/he feels that the modification would be in the child’s best interests.1
It is also possible that before filing a petition to modify a current order, the parent can ask the judge to refer the matter for mediation and the judge has the power to do so.2
However, if you are looking to modify or terminate a joint custody order, the judge may do so if you can show it is in the best interests of the child without showing a substantial change in circumstances.3 Also, if both parents request it, a custody order giving one parent sole custody can be changed to a joint custody agreement if it’s in the child’s best interests.4
1 See, for example, In re Marriage of Lucio, 161 Cal.App.4th 1068 (2008); In re Marriage of Burgess,13 Cal.4th 25, 913 P.2d 473 (1996)
2 Ann.Cal.Fam.Code § 3170(a)(2)
3 See Ann.Cal.Fam.Code § 3087; see, for example, Niko v. Foreman, 144 Cal.App.4th 344 (2006)
4 See Ann.Cal.Fam.Code § 3088
Can I change the state where the case is being heard?
If you move to another state, you may be able to change the state where the custody case is being heard. You will have to file a motion in court to ask the judge who is hearing the case to change the state where your case is being heard (which may be called a motion for a change of venue). The judge may do so if the child and both parents no longer live in CA or if the child and one parent no longer live in CA and substantial evidence is no longer available in CA concerning the child’s care, protection, training, and personal relationships.1
This is often complicated and, as with all custody issues, we recommend that you talk to a lawyer about this. To find a lawyer in your area please visit the CA Finding a Lawyer page.
1 See Ann.Cal.Fam.Code § 3422(a) & (b)
If there is a final custody order in place, can I take my kids out of the state?
Generally, a parent can take his/her kids out of the state for a brief trip as long as there is no order prohibiting it and so long as it does not interfere with the other parent’s visitation rights. However, if you are uncertain whether a planned trip may violate your custody order, please consult with a lawyer before leaving.
Generally, you cannot change the child’s residence to another state without the written permission of the other parent or a court order. The court can direct that the parent who the child lives with has to notify the other parent if s/he plans to change the residence of the child for more than 30 days. The notice should be sent to the other parent by mail, return receipt requested, within a minimum of 45 days before the proposed move to allow the other parent enough time to object and to bring the case back to court. A copy of the notice also has to be sent to that parent’s attorney in the custody case, if s/he had one.1 To find out more about the procedures to notify the other parent, please contact the court where the custody order was issued.
Note: If either parent files for custody or files to modify custody, there will be an automatic restraining order in place prohibiting the parent who has custody from taking the children out of California until a judge comes up with a final judgment.2 Until the judge makes that final custody order, you would have to ask the judge for permission to take trips with the children out of state.
1 Ann.Cal.Fam.Code § 3024
2 Ann.Cal.Fam.Code § 3063
What happens if there is a custody, visitation, or support order made within a protective order, and the protective order expires?
Any order for custody, visitation, or support that is made within your ex parte (temporary) protective order or a final protective order will continue to be effective even when the protective order ends.1 You may want to ask the judge to specifically write this fact into the protective order to make future enforcement of it easier since this new law may not yet be printed on the protective order forms.
1 Ann.Cal.Fam.Code § 6340(a)