Child Custody Modification

In California, modifying a child custody order requires a proof of significant change in circumstances. However, like most rules in the legal field, this rule also comes with important exceptions. Here, I will discuss some of those exceptions. However, first I will discuss where the change in circumstances rule comes from and why does it exist in child custody cases.


Res Judicata

Generally, you may need to prove significant change in circumstances when you ask for a modification of a child custody order in family court. The key phrases here are “modification” and “custody order.” In the legal field there is this concept called “Res Judicata.” This is the principle that states, for the sake of judicial efficiency, a case should not keep getting re-litigated if it has already been litigated or decided once on its merits. The way Res Judicata is incorporated within child custody laws is through the rule of significant change in circumstances. So, assuming there is a final custody order, one way you can modify it is to first prove a significant change in circumstances. In short, you are telling the court that there are no issues with Res Judicata since there are new facts (changed circumstances) that are significant enough to requires modification (litigation). Thus, you are not re-litigating the exact case that was litigated previously. In fact, change in circumstances requires a showing of circumstances that did not exist at the time the custody order was made.

Exceptions to Change in Circumstances

Given that Res Judicata is the governing principle behind the significant change in circumstances rule, then we can logically deduce certain exceptions to the significant change in circumstances. So, in California, the type of cases stated below proof of significant change in circumstances may not be required for child custody modification.

Temporary vs. Final Custody Orders  

If a child custody order is temporary and not final judgment or final order of the court, then you do not need to prove significant change in circumstances to change custody. So often the issue here comes down to the definitions of final and temporary custody orders.


Increasing Parenting Time or Visitation

If you are just asking the court for more time with your child and not necessarily a change in custody you do not need to prove significant change in circumstances. For example,  you may want more visitation time with your child. Perhaps, you want an additional weekend per month. If your request is not significant enough to be considered a change in custody, then you do not need to point to significant change in circumstances. You may only need to prove that the change you request is in the best interest of the child.


California law recognizes exceptions to the significant change in circumstances rule in modification of child custody orders. Like the rule itself, exceptions are also governed by the principles of Res Judicata . We hope you found this article informative.


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