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  • Writer's pictureAndew McKeown

Modifying Child Custody vs. Modifying Visitation in California Family Court

Updated: Mar 24, 2023

During divorce proceedings, the issues of child custody and child support are reflected in a court order that the parties have to follow. These orders are based on multiple factors and typically align with what suits the everyday lives of the parties and their children. It is normal for situations to change, but when these changes occur, what the court initially ordered may no longer be what is best for the parties and their children.

When a change occurs that warrants a change in orders, a party can request a modification that, if approved, will result in a new court order that reflects the changes. Requests to change child custody and child visitation are very common modification requests that the family court handles, and while they may seem similar, the effect that each of those modifications has is different and courts handle each under different standards.

Child Custody

In California, child custody is divided into two types: physical custody and legal custody. Parents can share custody which is referred to as joint custody, conversely a parent may also have sole custody.

Physical custody is the actual physical possession of the child. When a parent has sole physical custody, this means that one parent has the right to have the child live with them the majority of the time, while the other parent has visitation rights. Joint physical custody is when the child spends a significant amount of time with both parents, and that both parents have the right to make decisions about the child’s daily care.


Legal custody refers to the authority to make important decisions about a child’s upbringing, such as their education, healthcare, and religion. When a parent has sole legal custody, that one parent has the right to make decisions about the child’s upbringing without consulting with the other parent. When parents have joint legal custody, both parents have an equal right to make decisions about the child’s upbringing and the parents must consult with each other and make decisions jointly.


Modifying child custody court orders requires a parent to show that there has been a significant change in circumstances since the permanent or post-judgment order was made that warrants a modification. This change must be significant enough that it affects the child’s well-being. Some examples of what might be considered a significant change of circumstances are:


Changed Needs: If the child’s needs have significantly changed due to things such as a medical condition or a mental health issue, the existing custody arrangement may no longer be appropriate.


Living Situation: If a parents living situation has changed which impacts the ability to share physical custody of the child or makes it difficult for the parents to maintain regular visitation.


Work Schedules: If a parent’s work schedule has changed and affected their ability to care for the child.

Unstable Environment: If a parent is no longer able to provide a safe and stable home environment for the child.

Substance Abuse or Criminal Activity: If a parent has engaged in behavior that puts the child’s well-being at risk such as alcohol or drug abuse, domestic violence, or criminal activity.


There are many situations where there has been a significant change of circumstance that warrants a modification of child custody, but overall the court considers several factors such as the child’s age, health, education, and relationship with each parent to determine which arrangement is best.


Visitation

A visitation schedule is the amount of time that a noncustodial parent spends with their child. In California, a noncustodial parent is a parent who does not have physical custody of their child. This means that the child primarily lives with the other parent, and the noncustodial parent typically has visitation rights. Despite not having physical custody, the noncustodial parent may still have legal custody.


Noncustodial parents in California still have visitation rights, which are delineated in a parenting plan or visitation order. A visitation schedule is determined according to the best interests of the child and also created to allow the noncustodial parent to have regular and meaningful contact with the child.


The court’s standard for modifying a visitation schedule is more relaxed than the significant change of circumstances standard. When modifying a visitation schedule, courts will determine a schedule based on the best interests of the child.

The best interests of the child promotes the child’s health, safety, welfare, and happiness. The best interests of the child is determined by evaluating several factors, including: the child’s age, emotional and developmental needs, each parent’s ability to provide for the child’s needs, the child’s relationship with each parent and any siblings, and each parents ability to promote and maintain a positive and healthy relationship with the child.


Although the standard for modifying a visitation schedule is more relaxed than modifying child custody, it is important to note that when a parent requests a change in the visitation schedule that amounts to a change in physical custody (i.e. from joint physical to sole physical and vice versa), the court will use the significant change of circumstance test.


Choosing What is Best For You

When parent’s experience a change of circumstances that no longer aligns with the current child custody or visitation schedule, it is possible to ask the court for a modification. It is important to note that modifications can be complex and may require the advice of an experiences family law attorney. The attorneys at Harris & McKeown Law Firm have over 10 years of experience in assisting clients with their family law needs.


If you are located in Orange County or its surrounding areas and you need advice on how to modify child custody or visitation, schedule a consultation appointment online at HarrisFamilyLawOC.com or by calling (949) 297-6529.


**DISCLAIMER**


THIS INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. EVERY CASE IS DIFFERENT AND THIS GUIDE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. THIS ARTICLE DOES NOT CREATE AN ATTORNEY CLIENT RELATIONSHIP BETWEEN THE READER AND ITS AUTHOR. IF YOU HAVE LEGAL QUESTIONS, CONSULT WITH A FAMILY LAW ATTORNEY.


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