Modification of Child Custody Orders Warranted after Therapy Completed

Posted on March 25th, 2012

An increased timeshare and the completion of a period of therapeutic visitation is a change of circumstance that does warrants new custody and visitation orders.

In Irmo Afar, (an unpublished opinion of District 3, filed September 19, 2011), a March 2005 judgment awarded Mother sole legal and physical custody of the parties’ two boys. Mother lived in Philadelphia, Pennsylvania and Father lived in California. Father was permitted “therapeutic visitation” with the two boys until the therapist determined that he was ready to have visitation not supervised in therapy.

In 2007, Father filed an Order to Show Cause to modify the custody order. In 2008, a court-appointed custody evaluator recommended that unsupervised parenting time with Father begin immediately. The 2009 trial on Father’s motion to change custody resulted in an order that Father and the boys have therapeutic visitation.

In December 2009, the therapist reported his meetings with the family and reported the boys were friendly, there was no hostility between Father and the boys, and that the children expressed a desire for more time with their father.  In January 2010, the trial court ordered the parties to have joint legal custody, and awarded mother primary physical custody. The court found there was no evidence to suggest that the boys’ health, safety or welfare would be jeopardized by a joint legal custody order.  The court also found that if Mother received an order that she have sole legal custody, she would use that order against Father to limit his parenting of the boys.

The Mother appealed the trial court’s findings, arguing that the trial court erred by modifying a permanent custody order without a showing of changed circumstances. The Court of Appeal disagreed with Mother.  The 2005 judgment on reserved issues gave Mother sole legal and physical custody of the minor children. The Court of Appeal treated this judgment as a final judicial custody determination that could only be modified if “changed circumstances” indicated that a different custody arrangement would be in the children’s best interest. (This rule is well settled law according to Montenegro v. Diaz, (2001) 26 Cal.4th 249, 256 and Irmo Brown & Yana, (2006) 37 Cal.4th 947, 956). Once a court has entered a final custody order reflecting the child’s best interest, the paramount need for continuity and stability weighs in favor of maintaining that custody arrangement. (Brown & Yana, at pp. 955-956.)

The Court of Appeal said the record amply supported the trial court’s finding of changed circumstances , specifically, that the boys had no contact with father, but now the children visit father two to three days a month in Southern California. Additionally, since April of 2009, the boys and Father have been through extensive counseling as well as therapeutic visits. Moreover the trial court concluded that if sole legal custody were awarded to Mother, she would use it “as a sword against Father” and that this was not be in the best interest of the children.

The Cour of Appeal also rejected Mother’s argument that the trial court ignored the recommendations of its own experts.  Court appointed experts are called “730 Evaluators” (after Cal. Evid. Code 730, which authorizes the court to appoint experts).  Trial courts are not bound by the recommendations of their experts. Family Code § 3183 (a) states that a mediator may make a “recommendation” regarding custody and visitation but that it is simply “evidence to be weighed with all other evidence and it is the court, not the mediator, that bears the responsibility to decide custody. (Irmo Rosson, (1986) 178 Cal.App.3d 1094, 1104.)

Modifications of permanent child custody orders can be filed by either party after a judgment has been entered, so long as a minimum level of “changed circumstances” has been shown by the moving party.  Our family law experts have litigated hundreds and hundreds of child custody cases with excellent results.  We prepare our clients for the mandatory mediation that precedes the custody hearing.  Call our office today at (619) 284-4113 to schedule your consultation.  You can also email us.