2015: How Can You Modify a San Diego Superior Court Custody And/or Visitation Order in a Paternity, Legal Separation or Divorce?

Legal custody, and it is does not make a difference whether the parents were married [such as in a divorce or legal separation] or unmarried [such as in a paternity], grants decision making ability. There is sole legal custody or joint legal custody. In San Diego Superior Court, the orders are, overwhelmingly, for joint legal custody. Legal custody decisions include health, education and welfare. These can be for medical decisions, where the children or child go to school and many others which are very important. Visitation is physical custody of the child or children for time periods. The order can be for joint physical custody which would mean an equal timeshare for both parents. The order can be for one parent to have primary physical custody and the other parent have visitation time but the time share is unequal. The order can also be for one parent to have sole physical custody which means that the other parent does not have anytime share however this is extremely rare in San Diego Superior Court. As above, there is no legal distinction for custody and visitation orders made in a legal separation, paternity or divorce however, in a paternity case, there must be a judgment of paternity for legal rights [and responsibilities] of the father.

In San Diego Superior Court, most parenting plan orders are reached by agreement. This can be in writing [preferably] or orally. When parents cannot agree on the visitation and custody orders, then the parents must attend the mandatory mediation which under the auspices of the Family Court Services in which Licensed Clinical Social Workers make written recommendations to the Court if the parties cannot agree on a parenting plan and gives a copy to both parents and the Judge. The Judges, statistically, follow the written recommendations a majority of the time. If the parents can reach an agreement, then the mediator writes up the agreement and the Judge will make this an order. A temporary order, by legal definition, is one which is pre judgment of divorce, legal separate or parentage. Modifying a temporary custody and visitation order does not require a change of circumstances as does a modification of a permanent order. The legal procedure to modify a temporary order is either a written agreement [stipulation] or by filing a motion which is called a Request for Order. In San Diego Superior Court, the Judges [normally] do not allow the parents to return to Family Court Services for a period of time from the date of their last mediation.

The legal definition of a permanent parenting plan is that this is post judgment of parentage, legal separation or divorce. The same legal procedures apply to modification of post judgment orders as pre judgment orders: stipulation or motion. There is a difference, however, as modifying a permanent visitation and custody order requires a change of circumstance. A change of circumstance is not definable and different in every case. For example, would the passage of five years be a change of circumstance in itself? Would a parent moving within San Diego County be a change of circumstance or the child or children moving from elementary to junior high or junior high to high school? Would the remarriage of one or both parents be considered a change of circumstances or children born of a different relationship after the permanent orders are made?

The law firm of Doppelt and Forney, APLC, can help you analyze whether you have the legal basis for file a motion for modification of a temporary or permanent parenting plan. Their office offers a complimentary virtual consultation up to 30 minutes with an attorney to discuss the specifics of your case. They try to be very easy to work with.