Child Custody Judgments that are Not Final May be Modified Based on the Best Interests of a Child

A mother and father struggled significantly to find a suitable child custody arrangement for their son, Gregory, were ordered to custody mediation. After custody mediation, through their family law attorneys, they entered into a temporary child custody order where the mother had physical custody and the father had visitation rights that were to increase over time. Subsequently, the parents entered into a new stipulation stating that the mother had primary physical child custody, and the father would have secondary physical child custody. While the order outlined a new visitation schedule it did not state that it was a permanent child custody order. Further disagreements caused the father to direct his divorce lawyer to file an order requesting modification of the child custody order to joint physical custody. Mother’s family law attorney argued the family law court could not order a change of child custody because father had to show a change in circumstances, and had failed to do so. The family law court held that a showing of change in circumstances is not required for a change in child custody if there has not been a final judicial child custody determination. Furthermore, the divorce court determined it was in Gregory’s best interest to award primary physical child custody to father because he was more willing to share Gregory than was mother. Upon review, the family law court reversed the family law court’s decision based on the grounds that orders were final judgments as to child custody.

The Supreme Court reaffirmed the family law court decision and awarded primary physical child custody to the father. The Court explained that child custody disputes involve “fluid factual circumstances” which often requires resolution of disputes before any final judgments can be rendered. Thus, stipulated child custody orders may be final judicial child custody determinations but not all stipulated child custody orders are conclusively final orders because that would discourage parents from freely entering into them. The Supreme Court held that “a stipulated custody order is a final judicial custody determination for purposes of the changed circumstances rule only if there is a clear, affirmative indication the parties intended such a result.”

Agreeing with father’s famly law attorney, the Court determined that neither of the stipulated orders entered into by mother and father clearly stated they were final judgments as to child custody. Since neither order contained a clear, affirmative indication that the parties intended it to be a final judicial custody determination the trial proceeding was the initial decision on child custody. Thus, the family law court had the widest discretion to choose a parenting plan that is in the best interest of the child. Father’s family law lawyer did not have to show a change of circumstances because a final judicial child custody determination had not been entered into by the time of trial.

Montenegro v. Diaz (2001) 26 Cal. 4th 249