On April 8, 2008 the Fourth District Appellate court provided direction on which standard to apply in cases seeking a change in parenting and visitation post Judgment.
In re Marriage of Lucio, the Judgment of Dissolution from 2004 awarded both parents joint legal custody and granted sole physical custody to Mother with monitored visitation to Father. In April, 2006, Father filed an Order to Show Cause seeking joint physical custody of the children. The trial court denied Father’s Order to Show Cause, and prior to the order on the first Order to Show Cause being entered, Father filed a second Order to Show Cause requesting a modification to the parenting plan with no monitored visits. Father filed supporting Declarations which spoke to the concerns regarding the Penal Code violations (which had led to initiating monitored visitation), but the trial court ruled that Father had failed to allege a change of circumstance since the denial of the first Order to Show Cause and therefore dismissed the second Order to Show Cause.
The Appellate court reversed the lower court’s decision to apply the changed-circumstances standard and directed the court to reconsider the Father’s Order to Show Cause under the best-interests standard, summarizing its reasoning as follows:
Under the changed circumstance rule, after the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, custody modification is appropriate only if the parent seeking modification demonstrates “‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest.” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.) But the changed circumstance rule does not apply when a parent requests only a change in the parenting or visitation arrangement not amounting to a change from joint custody to sole custody, or vice versa. Instead, the trial court considers a request to change the parenting or visitation arrangement under the best interests of the child standard. (Full text of 04/08/2008 Opinion.)
The Appellate court stated that the Father’s requested changes to the visitation schedule did not create a de facto change in custody and would not disrupt the children’s established patterns of care and emotional bonds with Mother or destabilize the sole physical custody arrangement.
The court relied on a number of previous cases, including Enrique M. v. Angelina V. (2004) , In re Marriage of Birnbaum (1989), In re Marriage of Burgess (1996), and Niko v. Foreman (2006) continuing the pattern of distinguishing a request for change of custody from a request to modify the visitation schedule or co-parenting arrangements.