The mother and father of a 9-year-old daughter separated after 10 years of marriage. The Court awarded Mother with temporary physical custody because Mom was the child’s primary care taker. Father was allowed to see his daughter once a week.

Shortly after, Mother and Father attempted to reconcile their marriage. Daughter started spending more time with her Father during the reconciliation period. Eventually, Mother and Father decided their marriage should end in divorce due to unsuccessful repair attempts.

Father then went back to court and successfully had the custody order modified. After an evidentiary hearing the Court awarded Father with joint legal and physical custody with Mother.

Then, Mother filed a court papers to have the court revisit its ruling awarding joint legal and physical custody to father. The basis for Mother’s request was that Father was allowing Daughter to engage in dangerous activities such as entering a soap box derby, ride a small motorized scooter and allowing Daughter to play with the neighbor’s dog.

The court denied mother’s request writing that Father had not exposed Daughter to any substantial risk of danger. The Mother appealed the family court’s decision.

The appellate court wrote that the family court has wide discretion to choose a parenting plan that is in the best interested of the child. The appellate court further stated that a custody order will only be modified if the Mother can show a significant “change in circumstances” indicating that a different custody arrangement is needed. Allowing Daughter to enter the soapbox derby, ride a motorized scooter and play with the neighbor’s dog did not qualify as a change in circumstances necessitating modification of the custody order.

Put another way, the family court is not going to modify your custody order with your husband unless you can show a substantial change in circumstances. However, like many rules in the law, this is not a clear standard. You should consult a family law attorney if you would like further information into what qualifies as a substantial “change in circumstances” that would quality for a change in a custody order.

Paul Nathan
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Marin County California Divorce, Child Support and Custody Lawyer Representing Women Exclusively