Child Custody After Divorce

When your divorce is over and the marital settlement agreement has been signed and judgment has been entered, you can settle into your routine as either the custodial or non-custodial parent. You may not have agreed with the custody arrangement or the time sharing schedule, but you have to adhere to it for the benefit of your children and so all of you can proceed with your lives. But the child custody order or parenting plan can be modified or changed at some point if it is in the best interests of the children and conditions have materially changed.

Changes are not unexpected in a parenting plan. One of you may change jobs, wish to relocate, are suffering a serious medical condition, or find that you or ex-spouse are having problems raising the child and a change in custody may be in the children’s best interests. If your child is old enough and exhibits a certain maturity and prefers to live with the other parent as the primary custodian, then this factor is seriously considered along with others.

How to Modify the Parenting Plan

If you and your spouse are in agreement, you can request a change from the court. You might have to meet with a mediator initially to discuss the reasons for the change before you meet the judge. In any event, you will have to demonstrate the following:

  • There has been a significant change in circumstances that affects the health, education or general welfare of the child or children so that a change in custody or visitation will be in their best interests
  • Show that a change will result in a stable, safe and consistent routine
  • Have a new parenting plan drafted that details the new proposed custody and time sharing schedule

The court will not automatically grant you a modification unless it is convinced that it is best for the children and that a material change in circumstances has occurred. It is always best to consult with a divorce attorney even if you and your spouse are in agreement over the changes to ensure the proper forms are completed and that your reasons for the modification are reasonable.

Disputed Modifications

Of course, there are cases where only one party is requesting a change in custody. This may arise because the custodial parent is incarcerated, or is about to be, or there is evidence of abuse, neglect, abandonment or serious misconduct. If you can show that the health and welfare of your children are imperiled, that no stable or consistent routine has been established and that you are capable of providing such a routine in a safe and healthy environment, then your chances of succeeding in modifying or changing the custody or parenting plan are substantial.

Mediation in these cases is usually ordered before a hearing is held to see if the proposed changes do meet the standard of being in the child’s best interests or if there are disputed allegations. Evidence that you may need to force a change may include:

  • The parent is denying you visitation on a consistent basis
  • Your child’s school work or performance is seriously suffering
  • There is a lack of discipline in the primary home with the child constantly in trouble or is chronically truant from school
  • The child is being subjected to physical abuse or a third party is administering the punishment  The custodial parent has been charged with or convicted of a serious crime
  • There is evidence the parent is abusing drugs or alcohol
  • The custodial parent is not spending much time with the children or is incapable of meeting the daily needs of the children

You may need considerable evidence of misconduct or risk to the child to prove your allegations so consulting with a divorce attorney is always recommended if you are seeking a change in custody or even time sharing without the agreement of the other parent. You will also need to draft a proposed parenting plan for court approval.

Enforcement of Custody Orders

Once the court approves a parenting plan and custody arrangement, it has the force of law. Anyone who is involved in the custody or care of the children, including a daycare facility, should have a copy of the order in case the other parent attempts to circumvent it by appearing and demanding that he or she take the child in violation of it.

Should the other parent violate the order, keep a record of the date, time and circumstances of each violation. In some cases, you may have to contact law enforcement if your child is not returned at the prescribed time. If the parent is consistently and willfully violating the order, you may be able to have the parent held in contempt by the court.

An Order to Show Cause regarding contempt is a criminal charge and the accused parent has all the due process rights of anyone charged with a criminal offense. In California, each charge of contempt is punishable by a fine of up to $1,000 and up to 5 days in jail. Community service of up to 120 hours for a first time offense is an option for the court to impose.

Contact A Divorce Attorney

Are you seeking a change in custody or visitation, or is your former spouse or partner seeking a change without your consent or agreement? If so, you need the services of an aggressive divorce attorney from The Law Offices of Omar Gastelum. Our attorneys have been representing the rights of fathers and mothers in child support disputes and in child custody issues that arise after divorce. Contact our offices today for an evaluation and frank discussion of your custody or other divorce matters.