Although a divorce in California could be finalized in as quickly as six months, if the former spouses have children together they are stuck with each other for 18 years, and longer!  The truth is that child custody and visitation issues linger long after the final divorce papers are signed. 

This is because as children grow older their needs and activities change.  Similarly, throughout the years parents move on with their separate lives and some acquire new jobs or partners.  Due to these factors, a visitation schedule that was implemented at the beginning of the case may not always work for the family a few years later.  This blog will explore how parents can request a modification to the current visitation schedule exercised by their family.

For this example, we will assume that both parents share joint custody of their minor child and each exercise visitation 50% of the time.  When the parents got divorced their child was only 9 years old and the parents agreed to a visitation schedule that allowed the child to frequently stay with both parents so that the child would not go a long period of time without seeing them.  This required the child to switch between the parent’s homes multiple times a week.  However, now the child is 14 years old, and he has expressed that he no longer enjoys switching homes so often and would prefer a week on, week off schedule with his parents.  Father agrees that a week on, week off schedule would make more sense while the mother thinks that their current visitation schedule should remain as is.

So how does the father in the above example request that the current visitation schedule be modified to a week on, week off schedule?  The first step would be to file a Request for Order with the court seeking a change to the parties’ current visitation schedule, since the mother will not agree to it.  California courts have held that “the standard of proof a parent sharing joint custody must meet to effect a change in parenting time is the best interest of the child, not changed circumstances.” (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371. 1373; emphasis added.)

Therefore, in the party’s pleadings, the parent needs to show that a change in parenting time is in the children’s best interests.  The higher standard of proof that there has been a change in circumstance to warrant the modification is not required because “[un]like a change in custody, an alteration in a parenting or visitation schedule does not cause a disruption in ‘established patterns of care and emotional bonds with the primary caretaker’ justifying the added burden of demonstrating changed circumstances.”  (See In Re Marriage of Lucio (2008) 161 Cal.App.4th 1068.)

Now that we know the party must demonstrate a change in visitation is in the child’s best interest, what exactly does that term mean?  When determining whether something is in the best interest of the child, the court will look at the child’s life holistically.  The court will consider several factors, including but not limited to, (1) the health, safety, and welfare of the child, (2) whether there is any history of domestic abuse by either parent, and (3) the nature and amount of contact the child has with each parent.  The child’s safety and wellbeing are the court’s primary concern.

Circling back to our example earlier in this blog, it appears that the father is in a good place to request a change to the visitation schedule.  Not only is the child older, but more importantly, the child himself has requested that the visitation be changed to a week on, week off schedule.  If neither parent has any history of domestic violence, and there are no other outstanding issues, the court most likely would grant the father’s request because the change appears to be in the child’s best interest.

Of course, there is no guarantee when you go to court.  It is best to try and work out custody and visitation issues directly with the other parent.  That way, both parents are comfortable and secure in the decision that was made. It is always important to discuss your options with an experienced family law attorney.

 

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