Your brand-new client forwards you an e-mail.  It contains a Request for Order from their ex-spouse, requesting modification of custody.  On the phone, they tell you, “I don’t understand!  We had a judgment on child custody two years ago!  How can they be doing this?”

If that’s true, you need to know.  You ask them to produce their judgment.  Inevitably, you receive a minute order or a Findings and Order After Hearing rather than a Judgment.  You ask follow-up questions.

“Did you have a trial?”


“Did you and the other side call witnesses and put on testimony?”

“We went in front of a judge.”

You feel your excitement draining away.  The chances that two unrepresented parties actually went to trial, as opposed to having a hearing, is low.  You hope the full case file will make the details more clear.

When the file arrives, you see that the parties did go in front of a judge – on a Request for Order Hearing for custody and visitation.  They then entered those custody orders as part of their Marital Settlement Agreement.  The parties never had a Judgment, and there is no final custody order.

You know your job, blocking this Request to change custody, just became harder.

Why, beyond the obvious need to examine a file in full, was it so important to see the “judgment” in this case?  Because the distinction between a final judgment and a temporary order has a marked impact on a request to modify said order.

Claim preclusion, as embodied in the doctrines of collateral estoppel and res judicata, is  intended to provide closure and finality to court cases.  In civil cases, once a court has reached a final judgment on the merits on a particular issue, further claims by the same parties on the same facts cannot be brought.  This prevents re-litigation of the same issues over and over again, a necessity for a functional court system.

Family court has a much more relaxed approach to this issue.  The paramount interest of the State of California in protecting children’s welfare, embodied in the ‘best interests’ standard of Fam. Code §3040, is a much stronger interest than the interest in judicial economy and finality of judgments.  Child custody, as well as child support, remain open by statute throughout a child’s minority.  (Fam. Code §3022).

Temporary orders could be said to be the rule rather than the exception in family court.  In family court, issues of child custody and visitation are often pressing and urgent.  Separations often happen unexpectedly, during times of great emotional turmoil or domestic violence.  Ex parte orders, be they restraining orders, emergency custody orders or orders shortening time, are common.  It is not surprising that divorcing spouses need immediate answers to the question of where the children should be on a given day, as well as financial questions such as spousal support and child support.  This common urgent need for interim orders means that a great deal of family law is litigated well in advance of any trial, and it is common for a judgment to simply ratify temporary orders that have been issued previously.  In fact, many separating couples neglect their cases after receiving temporary orders, either intentionally or out of a poor understanding of the court system, and there is a subset of the population who believe themselves to be divorced but have never actually received a judgment of marital status.

While many court cases are resolved through interim orders, and a ‘final’ judgment of custody may not be particularly final, the entry of final judgment as to custody and visitation orders is an important distinction which does have an effect on family court proceedings.  Cases as In re Marriage of Burgess (1996) 13 Cal.4th25 and Burchard v. Garay (1986) 42 Cal.3d 531, established the “significant change of circumstances” rule, which stated that to change a final custody determination by a judge, the requesting party must show a significant change of circumstances which would make the change in the best interests of the child.  The ‘final custody determination’ does not have to be in front of a judge, but it must have been intended to be final, rather than an interim order.  This rule was not only put in place for judicial economy but to ensure stable custody arrangements.  This standard applies to both legal and physical custody orders.  (Marriage of McLoren (1988) 202 CA3d 108).

Many custody cases are not ultimately decided by judges, but by stipulation.  The child-custody recommended counseling process (known as FCS mediation in San Diego) is intended to produce settlement and is often effective, as are Mandatory Settlement Conferences.  (Montenegro v. Diaz (2001) 27 P.3d 289).  Montenegro v. Diaz states that the ‘change of circumstances’ rule applies only applies to stipulations if the parties make a “clear, affirmative indication” in the text of the stipulation that the order is intended to be final rather than temporary.  Such stipulated final orders are known colloquially as “Montenegro-Diaz orders.”  If there is ambiguity as to whether an order is intended to be final, the Court should consider the order to be interim and not subject to the “change of circumstances” test.  (In re Marriage of Richardson (2002) 126 Cal.Rptr. 2d 45).

What does this mean in practice?

Unless your client’s prior custody order was the result of either a trial or a stipulation which contains language such as “this is intended to be a final order on child custody and visitation” or “this is a Montenegro-Diaz order,” it is likely that the “change of circumstances” rule will not apply to your client’s case.

Even if there is a final custody order, the existing judgment is far from impregnable.  The best-interests standard is paramount, and the change-in-circumstances test is a mere adjunct to it.  The “change of circumstances” requirement also does not apply to mere “changes in parenting time” as opposed to changes in custody, meaning as long as either joint custody or primary custody are preserved, or the request is seeking only to alter visitation, the moving party need not show a change in circumstances.  (Enrique M. v. Angelina V. (2004) 121 CA4th 1371; Marriage of Birnbaum (1989) 211 CA3d 1508; Marriage of Lucio (2008) 161 CA4th 1068).  This can even apply to move-away cases.  (Niko v. Foreman (2006) 144 CA4th 344).

Essentially, a family law case will rarely be bound by res judicata in any meaningful way.  Only a subset of a subset of cases will be affected by the “change in circumstances” rule, and even then, the best interests standard is far more powerful.

The good news about these rules is that there is always an opening to correct a disastrous custody ruling.  The bad news is that the lack of finality built into this system can trap high-conflict parents in a never-ending series of struggles across the years of their child’s minority.  Just because a custody order can be modified doesn’t mean it should, and regardless of the appellate law, many judges are highly skeptical of parents coming to court to modify custody without sufficient justification.  It falls upon us to give the best possible advice to guide our clients through this process.

Written by: Christopher McDonough