Can I Modify My Custody Arrangement Without Going to Court?
To put it simply, yes, parents can potentially modify their custody arrangement without going to court in California.
As children grow older, their needs and interests oftentimes change and child custody arrangements may need to be modified accordingly.
The easiest way to modify a custody order is for the parents to communicate (co-parent) and agree to the changes and submit them to the court for review. If the parties are on speaking terms, which they should be as they are raising a child together, the parent seeking a modification can approach the other parent and see if a new agreement may be reached.
If the parties can agree upon the child custody and visitation modifications, they are free to enter into a stipulation which is then signed by a family court judge. This stipulation essentially becomes the new, legally enforceable child custody and visitation order, whether it provides for joint custody or sole custody to one parent.
Creating your own parenting plan could help you avoid the need for modification in the future. You and your co-parent can work together to reach a mutual custody arrangement without court intervention. A judge or Court Commissioner would then have to sign off on the plan to finalize the arrangement. Even if you and your co-parent drafted your parenting plan to begin with, you need a judge’s approval to have a valid order modified.
Modifying a custody arrangement without going to court does not simply mean discussing the matter with your co-parent or getting his or her permission to take the child. While you can do this, it is important to realize the oral agreement will not be an enforceable custody modification under California law. Without a judge’s consent to the change, your co-parent could turn around and report you for kidnapping – even if your co-parent orally agreed to the modification. Protect yourself legally by contacting an attorney to have your written agreement entered as a court order.
This option is the simplest and most cost-effective option, and an experienced family law attorney can assist you in negotiating the terms of the modified order. Also, an attorney will know how to draft a comprehensive order that leaves no room for confusion and doesn’t leave any loopholes for the other party to exploit.
Child Custody Modification Through Mediation
Child custody mediation is a popular and effective avenue for parents trying to arrange or modify custody agreements in California.
Mediation might be right for your family if you and your co-parent have a history of successfully working together on the terms of your custody case. If you and your co-parent have a high degree of conflict and poor co-parenting and communication skills, mediation might not be as productive. You and your co-parent must be willing to hear each other out and work together to resolve custody issues for the best interest of your child.
Modifying Your Custody Arrangement in Court
If parents cannot agree on modifying a custody order, the parent seeking the modification will need to file a motion with the court to request it. This generally
In modification proceedings, the goal is to convince the family court that since entry of the prior order, significant changes have taken place and require a new custody and visitation order. Courts are reluctant to modify their orders, since they were arrived at after careful consideration of the facts in the case and the California Family Code provides that children are entitled to a certain level of stability.
Examples of a “significant change in circumstances” which may justify a modification of child custody are:
- One or both parents are abusing drugs or alcohol
- Criminal conviction or incarceration of one of the parents
- The child is being neglected or abused
- The custody order has been violated
- One or both of the parents have had a substantial change in their work schedules
- One parent has or wants to relocate, which will interfere with the current custodial arrangement
- The child has expressed a preference to change custody (if the child is old enough to voice a preference, depending on the child’s age and best interests)
- The safety, health, or well-being of the child is at risk (e.g. the child is exposed to domestic violence in one parent’s home)
- One or both parents have demonstrated an inability to provide for the child’s physical, mental, or emotional needs
- One or both parents have died