As a Sonoma county family law attorney, I work with many people who want to change their custodial arrangement. Conventional wisdom holds that it is exceptionally difficult to modify child custody post-divorce. Is this true? Like most things in family law, it depends upon the particular circumstances of the case and the ability of the parties to reach an agreement. Minor modifications are often easy to accomplish. But without parental agreement, a more substantial revision of the custodial arrangement will require both: (1) a material change of circumstance; and (2) a finding that failure to alter the custodial arrangement would be a detriment to best interests of the child.
A first step would be to contact your ex-spouse to see if a new parenting plan can be arranged without legal intervention. Perhaps your ex is just as anxious to switch his “on” nights as you are. Often, both parties want a change, yet neither is willing to risk broaching the subject. If you are fortunate, the two of you could stipulate to a change, alleviating a great deal of stress and avoiding unnecessary expense.
If you desire an extensive change, such an attempt to move to joint custody where your spouse previously had sole custody, it is significantly less likely that your ex-spouse will agree to the new arrangement. A material change of circumstance will be required. What exactly constitutes a “material,” or, “substantial,” as some courts put it, change of circumstance? It’s more than a change in the day of soccer practice! It is best to have a serious and documented explanation regarding why new circumstances require a different plan.
The gray area is where the actual custody arrangement remains the same, yet one party seeks to alter the time split. While these situations may require judicial intervention, they do not require a change of circumstance. Pursuant to California Family Code § 3040 (b), the family court has the widest discretion to “choose a parenting plan that is in the best interests of the child.” Even post- judgment, the court can review your parenting plan and order changes. If the requested change does not affect which parties have sole and/or joint custody, neither party is required to demonstrate a change of circumstance. Several courts, in published cases, have permitted a parent to modify a visitation schedule or other more minor parenting plan issue, without a change of circumstance.
In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, is one case that demonstrates the principle that change of circumstance is not required where parties seek to modify the details of a parenting plan. There, wife had been granted sole physical custody of the children while father was provided six hours of supervised visitation during the time that he was on probation. Upon completion of probation, father petitioned the court for a “shared parenting plan” with unsupervised visitation. While the trial court initially refused to grant a hearing because father had not shown changed circumstances, the court of appeal held that father was not required to do so. The appellate court instead concluded that the change of circumstance rule “does not apply to a modification request seeking to change a parenting or visitation schedule.”
Absent a parental agreement, a request to modify a custodial plan is still a serious endeavor, even if change of circumstance is not required. Be sure to seek legal advice and discuss your options with an attorney. Your counsel can help you decide upon the approach that is most likely to be successful.