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Modifying Child Custody/Visitation Orders

Child custody and visitation orders generally are modifiable throughout the child's adolescence (generally up to age of 18) whenever the court finds a modification is "necessary or proper" in the child's best interests. [Fam.C. § 3022; see also Fam.C. §§ 3087 & 3088.] Because a family law court has continuing jurisdiction and the case remains "pending" even after entry of a dissolution judgment, the court can modify if it is "necessary or proper" in the child's best interest.

Although the laws governing child custody disputes only require courts to ascertain a child's best interest, the best interest standard also includes a required showing of a significant change of circumstances so affecting the child when the order had previously been a final order. Therefore, the ordinary best interest standard, without the additional changed circumstances burden of proof, applies when the court makes an initial custody determination.

In comparison to changes to physical custody, whereby there must be a showing of significant change in circumstances to altering the custody arrangement, changes in the co-parenting schedule do not require the perquisite significant change in circumstances under a joint custody order. As long as the joint custody award itself is not being changed the court has very broad discretion to revise the "co-parenting residential arrangement."

Similarly to changes in the co-parenting plan, modifications to visitation also do not require application of the change in circumstances requirement. Because such modification does not change custody, the trial court considers visitation modification solely under the child's best interest standard.

However, regarding a change in custody, a court is required to base their analysis on Fam. C sections 3011, 3020 and 3040 which govern all custody determinations and in large part could be summarized as the child's best interest, with the primary concern being the child's health, safety and welfare, and so long as consistent with the child's health, safety and welfare, the preference for "frequent and continuing contact" with both parents.

Additionally, where the custodial parent's conduct deliberately frustrates visitation and communication between the child and the other parent a court may adjudicate a change in custody. This finding is typically based on findings that the custodial parent had an unrelenting pattern of frustrating the non-custodial parent's visitation coupled with the non-custodial parent's likelihood to better facilitate visitation with the custodial parent if the roles were reversed.

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