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The Law Offices of Paul H. Nathan

Q:
When will a court modify a custody order?

A:

This is a complex question. Let me explain.

The family code explicitly states the family court has the power to modify custody orders. CA Family Code section 3633. However, the family code does not provide any standards for determining whether a custody order ought to be modified. So far, judges have developed the standards.

The fundamental rule developed by judges is a custody order will only be modified when there has been a fundamental change of circumstances requiring modification of an existing custody order. That is a vague term so let me give examples below.

Examples of when Custody Order was Modified

California family courts have found a fundamental change requiring modification of the child custody order when one parent interferes with the other parent’s visitation with the child. Court’s have also modified a custody order when the health or other personal needs of the child is a reason for the modification. In addition, the court must consider and give due weight to a child’s wishes as related to the modification.

Examples of Denied Requests for Custody Order Modification

However, the court did not modify a custody order over the objections of the child’s mother when the father allowed the daughter to enter a box derby race, ride a motorized scooter and play with the neighbor’s dog. Mother argued that such activities were too dangerous for her daughter to engage in. The court disagreed.

Again, the family court denied modification when Mother requested modification based upon a showing of her own emotional instability without her son. The court felt that it was important that the child spend time with his father regardless of the mother’s emotional problems, which were called into doubt.

You should speak to a family law attorney before embarking on a request or opposing a request for modification of the court’s custody order of your child.

Paul Nathan
San Francisco Divorce & Custody Lawyer Representing Women Exclusively