In California, Family Courts consistently apply two fundamental principles as they settle divorce and custody disputes: kids are first primary concern, and the courts hold both parents responsible for the children’s support. Second, because stability and continuity are essential to children’s well-being, the courts try to minimize upheaval in “the custodial home.” These fundamental principles remain constant even as parents’ and families’ circumstances change.
In all divorce and custody disputes, children’s well-being prevails over all other considerations. The Family Code explicitly states, “The guidelines seek to place the interests of the children as the state’s top priority. The Courts’ decisions not only protect children against substantial reduction in their quality of life, but also assure custodial parents receive enough support to “improve the standard of living of the custodial household to improve the lives of the children.” Second, the courts try to establish fair and reasonable visitation and payment schedules so that custodial parents and the children can count on non-custodial parents’ compliance.
The Family Code says either parent may petition the Court for a modification of divorce or custody settlements when “a material change in circumstances” takes place. “Material change” is deliberately ambiguous, allowing for either dramatic improvement in a parent’s situation or a parent’s serious financial hardship. Six situations commonly prompt petitions for modification:
· One or both parents’ remarriage. Most divorce decrees declare that remarriage does not automatically establish grounds for modification, but two situations frequently trigger disputes. In one, the ex-husband remarries and takes-on responsibility for his new partner’s children. Even if she receives support from her former partner, the new husband struggles to make ends meet. The strain inspires his request for a change. In these situations, the courts generally are reluctant to grant modifications, because the man remains responsible for supporting his own children. In the other situation, an ex-wife marries a man with considerably more money than her ex-husband. The ex-husband petitions for modification on grounds that the ex-wife’s circumstances have dramatically improved. The courts are reluctant to grant modifications in these situations, too, because the woman may enjoy the use of her new husband’s money, but his assets remain his sole and separate property and therefore remain under his exclusive control.
· Substantial Change of Employment or Working Conditions. If either partner receives a promotion accompanied by a significant salary increase, the court typically will modify support agreements in light of the change. If the non-custodial parent remains unemployed for a significant length of time, the court may order continuing payments totaling one-half of his or her disposable income, but it may grant relief from arrears derived from the discrepancy between unemployment and the person’s regular income. The Family Court generally modifies visitation schedules according to changes in a parent’s work schedule or changes in the children’s school hours or participation in youth activities.
· Relocation. The Court generally modifies visitation schedules to accommodate parents’ changes of residence, but it may have no power to enforce the changes if a parent moves out of California or out of the United States. In general, one parent cannot stop the other from relocating, but a parent may seek the court’s guarantee of visitation, and in some cases the court also will order the relocated parent to provide the means for regular visitation.
· Military Call to Active Duty and Deployment. The law makes ample provision for reducing or deferring child and spousal support payments when an ex-spouse is called to active duty. In fact, the California Family Code makes specific provisions for just about every possible consequence of call-up and deployment. Although the court remains concerned about ex-spouses’ and children’s well-being, it generally seeks to relieve active duty military personnel of unnecessary stress and complication.
· Change of a Parent’s Condition. The court willingly modifies visitation and custody orders when a parent engages in behavior that endangers the children; it is especially sensitive and responds to abuse and neglect that result from alcohol or drug abuse. However, the court is equally responsive to the wishes of parents who have completed rehabilitation and provide compelling evidence of their recovery.
Most modifications take effect on the date the Family Court approves them, but the law does allow for retroactive modifications when exceptional circumstances warrant them. The law says modifications may be retroactive unless a prior order or stipulation specifically prohibits retroactive changes. In a few rare cases, parents who have received support may have to repay some of the money they have received, or they may have to redistribute property and assets to provide adequate repayment.
Although you may request a modification without an attorney’s assistance, Family Court officials very strongly recommend you consult an attorney before filing. An attorney will assess your case and determine whether or not your request meets the court’s requirements; an attorney especially will help you determine whether or not your petition serves your children’s best interests as well as your own. Because the court has power to demand payment of court costs and attorneys’ fees from losing litigants, consultation with a family law practitioner may save you not only time and aggravation but also a great deal of money.
In the Sacramento area, John Montero is an attorney who specializes in divorce and child custody issues. Contact his office at 916.641.7977 for an appointment to discuss your situation.