Temporary child custody orders are based on the best interest of the minor child. In determining best interest the court will look at relevant factors and all circumstances that establish the best interest.
In determining the best interest of the minor child the court determines whether there has been a history of past abuse by either parent to each other or to the minor child. The court also considers the health, welfare and safety of the minor child. The court will also look at the stability and continuity of the environment of the minor child. The courts also factors in whether the requested modification would separate siblings. California has a strong policy to protect the sibling relationship. Additionally, in determining the best interest of the minor child pursuant to family code section 3042 the court must "consider" and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason so as to form an intelligent preference as to custody." [See also Fam.C. 3030(c)(1)].
Where there is a permanent order the moving party must establish that there is significant change of circumstances that the court should consider in determining whether to modify the court order. Some examples of changes in circumstances include but are not limited to: the child's inability to adjust to their home, school and community; child's inability to get along with other siblings or an abusive step parent; a parent becoming incarcerated; parent becomes mentally or physically ill; substance abuse; sexual abuse by a parent or sibling; death of a parent; or relocation of a parent.
The modification process starts by meeting with experienced counsel to review existing orders and to discuss the likelihood of the desired outcome based on whether there is a temporary or permanent order in effect.
The second step requires filing an Order to Show Cause to place the modification request before the court. Prior to court the parents are required to attend a Family Court Services mediation to discuss whether the two can reach an agreement. If the parties are unable to reach an agreement the mediator often makes a recommendation to the court depending on the county that your case is heard.
At the hearing the parties can either adopt the mediation agreement or recommendation or request a full hearing with testimony in a contested matter. Family Code 217 states,
(a) At a hearing on any order to show cause or notice of
motion brought pursuant to this code, absent a stipulation of the
parties or a finding of good cause pursuant to subdivision (b), the
court shall receive any live, competent testimony that is relevant
and within the scope of the hearing and the court may ask questions
of the parties.
(b) In appropriate cases, a court may make a finding of good cause
to refuse to receive live testimony and shall state its reasons for
the finding on the record or in writing. The Judicial Council shall,
by January 1, 2012, adopt a statewide rule of court regarding the
factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other
than the parties shall, prior to the hearing, file and serve a
witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing the court
may, on request, grant a brief continuance and may make appropriate
temporary orders pending the continued hearing.
The acceptance of live testimony is currently in practice. Due to the code provision for live testimony short cause hearings less than twenty minutes may become a thing of the past. Family Code Section 217 does allow the court to limit or find good cause not to allow live testimony in appropriate circumstances which will be defined by a new rule of court outlining the factors for "good cause."
**The information contained on this page has been prepared by the Law Offices of Christine D. Thielo for informational purposes only. The information contained herein is general in nature and may not have application to particular factual or legal circumstances. This information does not constitute legal advice or opinions and should not be relied upon as such. This information is not intended to create and does not constitute an attorney-client relationship. Readers of this page should not act upon any information on this page without seeking professional counsel. All rights reserved.