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1 Any Attorney or Party

Any Street
2 Any Town, CA 55555

3 714-555-5555

4 Any Attorney or Party

8 Superior Court of the State of California

9 For the County of _________________

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11 In re the marriage of: ) Case No.


)
12 Petitioner: _________________________ ) MEMORANDUM OF POINTS AND AUTHORITIES
) IN SUPPORT OF REQUEST FOR ORDER OR
13 and ) NOTICE OF MOTION FOR
) MODIFICATION OF CHILD CUSTODY AND
14 Respondent:____________________________ ) VISITATION; DECLARATION OF ________;
) EXHIBITS
15 )
) DATE:
16 ) TIME:
) DEPT:
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)
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19
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 http://legaldocspro.net/california-divorce-litigation-document-package/
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Be sure to remove this notice and all other notices before using
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this document.
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TO THE COURT, ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD:

7 NAME AND CAPACITY OF MOVING PARTY herein submits their Memorandum of


8 Points and Authorities in support of their motion to modify the child custody/visitation order entered
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on DATE OF LAST ORDER on the grounds that LIST HERE THE GROUNDS SUCH AS THE
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LAST ORDER WAS NOT A FINAL ORDER, THERE HAVE BEEN CHANGED
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CIRCUMSTANCES SINCE THE DATE OF THE LAST ORDER, YOU ARE ONLY
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13 SEEKING TO MODIFY VISITATION, ETC.

14 NAME AND CAPACITY OF MOVING PARTY is requesting that the Court modify the
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child custody/visitation order entered on DATE OF LAST ORDER as detailed below.
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LIST HERE THE SPECIFIC DETAILS AS TO WHAT MODIFICATIONS YOU
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WANT SUCH AS CHANGE IN LEGAL AND/OR PHYSICAL CUSTODY, JOINT PHYSICAL
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19 CUSTODY, INCREASED VISITATION TIME, ETC.

20 The motion will be based on the notice of motion or request for order and the memorandum of
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points and authorities concurrently served and filed herewith, on the declaration of MOVING
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PARTY and Exhibits attached thereto concurrently served and filed herewith, on the papers and
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records on file herein, and on such oral and documentary evidence as may be presented at the hearing
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25 of the motion.

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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 Be sure to modify these paragraphs to suit your individual
2

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situation. Do NOT just use the wording here unless it definitely applies
4
to your particular situation.
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6 Note that you MUST personally file and serve all of your
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documents including the motion or request for order as well as all other
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9 supporting documents on the other party at least sixteen (16) Court


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days before the hearing date. Note that Court days means Monday
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through Friday not counting Court holidays.
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14 Check with the clerk of your Court to determine if there are any
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additional requirements imposed by your particular Court.
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Dated________________ _______________________________________________
19 ANY ATTORNEY OR PARTY
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 To purchase the entire document visit:
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https://legaldocspro.myshopify.com/products/sample-motion-to-modify-
4
child-custody-and-visitation-in-california
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MEMORANDUM OF POINTS AND AUTHORITIES
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19 I.

20 STATEMENT OF FACTS
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DESCRIBE THE CASE AND PROVIDE SOME RELEVANT INFORMATION SUCH
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AS TYPE OF CASE, DATE(S) OF TRIAL, DATE AND DETAILS OF ORDER, ETC.
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NAME AND CAPACITY OF MOVING PARTY contends that the Court should modify the
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25 child custody/visitation order entered on DATE OF LAST ORDER on the grounds that LIST

26 HERE THE GROUNDS SUCH AS THE LAST ORDER WAS NOT A FINAL ORDER, THERE
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HAVE BEEN CHANGED CIRCUMSTANCES SINCE THE DATE OF THE LAST ORDER,
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 YOU ARE ONLY SEEKING TO MODIFY VISITATION, ETC., as more fully set forth in the
2 declaration of NAME OF DECLARANT and exhibits attached thereto concurrently filed and served
3
herewith and incorporated herein by reference.
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NAME AND CAPACITY OF MOVING PARTY is requesting that the Court modify the
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child custody/visitation order entered on DATE OF LAST ORDER as detailed below.

7 LIST HERE THE SPECIFIC DETAILS AS TO WHAT MODIFICATIONS YOU

8 WANT SUCH AS CHANGE IN LEGAL AND/OR PHYSICAL CUSTODY, JOINT PHYSICAL


9
CUSTODY, INCREASED VISITATION TIME, ETC., as more fully set forth in the declaration of
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NAME OF DECLARANT and exhibits attached thereto concurrently filed and served herewith and
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incorporated herein by reference.
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13 Be sure to modify these paragraphs to suit your individual


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situation. Do NOT just use the wording here unless it definitely applies
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to your particular situation.
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II.
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19 LEGAL ARGUMENT

20 A. CHILD CUSTODY AND VISITATION ORDERS MAY BE MODIFIED


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THROUGHOUT THE MINOR CHILD OR CHILDRENS MINORITY WHENEVER
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THE COURT FINDS A MODIFICATION IS NECESSARY OR PROPER IN THE
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CHILDS BEST INTERESTS
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25 The law in California states that child custody and visitation orders may be modified

26 throughout the minor child or childrens minority whenever the court finds a modification is
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 necessary or proper. This court therefore has the statutory authority to modify the current child
2 custody and visitation orders as requested herein.
3
Family Code 3022 states that,
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The court may, during the pendency of a proceeding or at any time thereafter, make an order
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for the custody of a child during minority that seems necessary or proper.

7 In California, in child custody/visitation matters and child support, the family law court has

8 continuing jurisdiction and the matter thus remains pending even after entry of the underlying
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dissolution, legal separation or nullity judgment. Marriage of Kreiss (2004) 122 Cal.App. 4th 1082,
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1085.
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Family Code 3087 states that,
12

13 An order for joint custody may be modified or terminated upon the petition of one or both

14 parents or on the courts own motion if it is shown that the best interest of the child requires
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modification or termination of the order. If either parent opposes the modification or termination
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order, the court shall state in its decision the reasons for modification or termination of the joint
17
custody order.
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19 Family Code 3088 states that,

20 An order for the custody of a minor child entered by a court in this state or any other state
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may, subject to the jurisdictional requirements in Sections 3403 and 3414, be modified at any time to
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an order for joint custody in accordance with this chapter.
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24 Modify these paragraphs to suit your particular situation. Do


25
NOT just use the wording here unless it definitely applies to your
26

27 situation.
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 B. THE PUBLIC POLICY IN CALIFORNIA IS THAT A MINOR CHILD OR
2 CHILDREN SHOULD HAVE FREQUENT AND CONTINUING CONTACT WITH
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BOTH PARENTS AFTER A SEPARATION OR DIVORCE UNLESS THAT
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CONTACT WOULD NOT BE IN THE CHILDS BEST INTERESTS
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The California Legislature has stated clearly that is the public policy of California that a

7 minor child or children have frequent and continuing contact with both parents after a separation or

8 divorce unless that contact would not be in the childs best interests.
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Family Code 3020 states that,
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(a) The Legislature finds and declares that it is the public policy of this state to assure that
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the health, safety, and welfare of children shall be the courts primary concern in determining the best
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13 interest of children when making any orders regarding the physical or legal custody or visitation of

14 children. The Legislature further finds and declares that the perpetration of child abuse or domestic
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violence in a household where a child resides is detrimental to the child.
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(b) The Legislature finds and declares that it is the public policy of this state to assure that
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children have frequent and continuing contact with both parents after the parents have separated or
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19 dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and

20 responsibilities of child rearing in order to effect this policy, except where the contact would not be in
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the best interest of the child, as provided in Section 3011.
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(c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any
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courts order regarding physical or legal custody or visitation shall be made in a manner that ensures
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25 the health, safety, and welfare of the child and the safety of all family members.

26 Section 3020 states that it is the public policy of California to assure that children have
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frequent and continuing contact with both parents, and to encourage parents to share the rights and
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 responsibilities of child rearing, except where the contact would not be in the best interests of the
2 child. In re EM, (2014) 228 Cal. App. 4th 828, 844, see also In re Marriage of Ficke (2013) 217
3
Cal. App. 4th 10, 21, Second, the Legislature itself has plainly placed a high value on time with
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children. ( 3020, subd. (b) ["it is the public policy of this state to assure that children have frequent
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and continuing contact with both parents after the parents have separated ..."

7 And see also We cannot disagree with his assertion that it is in the best interests of the

8 children to receive nurturing from both parents. In re Marriage of Ficke, supra 217 Cal. App. 4th at p.
9
22.
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The current child custody and visitation order does not allow for frequent and continuing
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contact of the minor child or children with the moving party in that LIST HERE SPECIFICALLY
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13 HOW THE CURRENT ORDER DOES NOT ALLOW YOU FREQUENT AND CONTINUING

14 CONTACT WITH THE MINOR CHILD OR CHILDREN.


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It is in the best interests of the minor child or children that they have frequent and continuing
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contact with the moving party in that LIST HERE THE SPECIFIC FACTS AND EVIDENCE
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SUPPORTING YOUR CONTENTION AND BE SURE TO CITE TO ANY ATTACHED
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19 DECLARATION(S) OR EXHIBIT(S).

20
Modify these paragraphs to suit your particular situation. Do
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22 NOT just use the wording here unless it definitely applies to your
23
situation.
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25 C. THE MOVING PARTY MAS THE BURDEN OF SHOWING A SIGNIFICANT

26 CHANGE OF CIRCUMSTANCES THAT REQUIRE A MODIFICATION OF THE


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CHILD CUSTODY/VISITATION ORDERS OR THE MOVING PARTY IS NOT
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 REQUIRED TO MAKE A SHOWING OF A CHANGE OF CIRCUMSTANCES
2 UNDER THE UNIQUE FACTS OF THIS CASE
3
USE THE WORDING BELOW IF YOU ARE CONTENDING THAT YOU HAVE
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SHOWN A SIGNIFICANT CHANGE OF CIRCUMSTANCES
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The moving party contends that they have met their burden of showing a significant change of

7 circumstances in that LIST HERE THE SPECIFIC FACTS AND EVIDENCE THAT SUPPORT

8 YOUR CONTENTIONS AND BE SURE TO CITE TO ANY ATTACHED DECLARATION(S)


9
OR EXHIBIT(S).
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USE THE WORDING BELOW IF YOU ARE CONTENDING THAT YOU ARE NOT
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REQUIRED TO MAKE A SHOWING OF SIGNIFICANT CHANGE OF CIRCUMSTANCES
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13 While the party seeking a modification of child custody must make a showing of changed

14 circumstances in many cases, there are various exceptions to this rule such as the changed
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circumstances rule is triggered only after a "final" or "permanent" custody adjudication. The ordinary
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best interest standard, without the additional changed circumstances burden of proof, applies when
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the court makes an initial custody adjudication and when it adjudicates custody following any
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19 temporary or interim custody order. Montenegro v. Diaz (2001) 26 Cal. 4th 249, 257; see also

20 Marriage of Burgess (1996) 13 Cal. 4th 25, 29, 37.


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In order to encourage parties to enter into custody stipulations, any doubts about whether the
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parties intended a stipulated custody order to be a "final" or "permanent" custody adjudication will be
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resolved against finality and against application of the changed circumstances rule in subsequent
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25 proceedings to modify the stipulated order. All indication is that, where the issue is disputed, a

26 stipulated order will be deemed to be temporary or interim in nature unless it clearly states it is a final
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judgment as to custody or words to that effect. See Montenegro v. Diaz, supra, 26 Cal. 4th at 259,
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 neither underlying stipulations nor court's minute order contained "clear, affirmative indication" that
2 parties intended stipulated orders to be final judicial custody determinations; see also Marriage of
3
Rose & Richardson (2002) 102 Cal. App. 4th 941, 952, (citing text).
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In one case, a stipulated dissolution judgment awarded the parties' joint legal custody, mother
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"primary physical custody" and father "reasonable visitation." The judgment also recited, however,

7 that "in the event the parties are unable to resolve their custody and visitation issues, they shall agree

8 upon a therapist or counselor to assist them. If after meeting with a therapist or counselor, the parties
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remain unable to resolve their differences, they shall make an appointment with the Conciliation
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Court prior to either party filing a request with the Court for a hearing on the issue." Despite other
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boilerplate language in the judgment stating it was intended to be a final settlement of the parties'
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13 rights and obligations, there was no "clear, affirmative indication" that they intended the stipulated

14 custody provision to be a final judicial custody determination. Quite the contrary, the stipulated
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language warranted "the opposite conclusion the parents disagreed and were attempting to resolve the
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custody and visitation issues." See Marriage of Rose & Richardson, supra, 102 Cal. App 4th at 951,
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952.
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19 As to physical custody, the changed circumstances rule applies when the modification request

20 seeks to remove custody from one parent and give it to the other. By contrast, no change of
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circumstances need be shown as a prerequisite to altering only the co-parenting schedule which is the
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amount of time the child spends in each parent's household under a joint custody order. Proposed
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changes in parenting time are "not on a par with a request to change physical custody from sole to
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25 joint custody, or vice versa"; the only standard the moving parent must meet in such cases is the

26 child's best interest. Enrique M. v. Angelina V. (2004) 121 Cal. App. 4th 1371, 1379, 1380; see also
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Marriage of Birnbaum (1989) 211 Cal. App. 3d 1508, 1513.
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 So long as the joint custody award itself is not being changed, the court has very broad
2 discretion to revise the "coparenting residential arrangement" where the parents are unable to agree
3
and call upon the court to intervene. See Marriage of Birnbaum, supra, 211 Cal. App. 3d at 1518.
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And another exception is the fact that the changed circumstances rule does not apply when a
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parent requests only a modification of the visitation arrangement regardless of whether the case

7 involves joint custody or sole custody. Because such a modification does not change "custody," the

8 trial court considers a visitation modification solely under the child's best interests standard.
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Marriage of Lucio (2008) 161 Cal. App. 4th 1068, 1077, 1080, (citing text) (collecting cases), in that
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case a noncustodial parent who had supervised visitation was not required to show changed
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circumstances in support of a request for unmonitored visits and additional visitation time not
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13 amounting to "de facto joint custody.

14

15
Modify these paragraphs to suit your particular situation. Do
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17 NOT just use the wording here unless it definitely applies to your
18
situation.
19

20 III.
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CONCLUSION
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Based on the foregoing, MOVING PARTY requests that the court grant this motion and
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modify the current child custody and visitation order as requested herein.
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25

26 Dated________________ _______________________________________________
ANY ATTORNEY OR PARTY
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
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DECLARATION OF ____________ IN SUPPORT OF MOTION FOR MODIFICATION
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I, ________________ declare as follows:
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1. I am a party to this action. I am over the age of 18 years and have personal knowledge
18

19 of the facts stated herein, and if called as a witness could and would testify competently to the truth

20 of the facts stated herein.


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2. I make this declaration in support of my motion to modify the custody and visitation
22
order entered on LIST DATE.
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3. The current child custody and visitation order should be modified on the grounds that
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25 LIST HERE THE GROUNDS SUCH AS THE LAST ORDER WAS NOT A FINAL ORDER,

26 THERE HAVE BEEN CHANGED CIRCUMSTANCES SINCE THE DATE OF THE LAST
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION
1 ORDER, YOU ARE ONLY SEEKING TO MODIFY VISITATION, ETC., AND CITE TO ANY
2 ATTACHED EXHIBITS.
3
4. I am requesting that the Court modify the child custody/visitation order entered on
4
DATE OF LAST ORDER as detailed below.
5

6
LIST HERE THE SPECIFIC DETAILS AS TO WHAT MODIFICATIONS YOU

7 WANT SUCH AS CHANGE IN LEGAL AND/OR PHYSICAL CUSTODY, JOINT PHYSICAL

8 CUSTODY, INCREASED VISITATION TIME, ETC., AND CITE TO ANY ATTACHED


9
EXHIBITS.
10
5. LIST HERE ANY ADDITIONAL FACTS OR EVIDENCE THAT SUPPORT
11
YOUR REQUEST FOR MODIFICATION SUCH AS THE MINOR CHILD OR CHILDREN
12

13 HAVE EXPRESSED AN INTEREST IN BEING WITH YOU MORE OFTEN, ETC. If any

14 documents that support your contentions be sure to attach them as Exhibit 1, and so on.
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6. I respectfully request that the court grant this motion for modification.
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17
Be sure to modify these paragraphs to suit your individual
18
situation. Do NOT just use the wording here unless it definitely applies
19

20 to your particular situation.


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I declare under penalty of perjury under the laws of the State of California that the foregoing
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is true and correct and that this declaration is executed on ______________ at _______, California.
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_____________________________________________
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NAME OF PERSON SIGNING DECLARATION
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POINTS AND AUTHORITIES-MODIFICATION OF CHILD CUSTODY/VISITATION