Custody Based on Best Interests of Children
In California, per California Family Code � 3011. Best interest of child determination, child custody is awarded based on the “best interests of the children”.
In order to do this, the court will conduct investigations based on evaluator findings and parties’ declarations. Determining what the “best interest of children” is an exhausting and long process, and in order to protect against a potential 18- year custody battle, the courts set a standard of what’s final. Once a custody order is considered “final” versus “temporary”, the courts will use a different standard “Change of circumstances” to make changes to the order.
Pendente Lite Orders
Pendente Lite (in Latin, “pending litigation”) orders are known as temporary orders, usually made at the outset of the case. These orders are akin to a bandaid rather than a permanent fix, and is subject to modification based on the “best interests of the children”.
More often than not, the pendente lite orders will turn into final orders. This is especially true if the divorce process is long, and the children have adapted to a certain status quo. A final custody order is usually made when the divorce is finalized, and all other issues, such as property division, have been disposed. Once there is a final order, the standard to modify changes from “best interests of the child” to “change of circumstances.”
Under 26 Cal.4th 249, S090699, Montenegro v. Diaz, the Court must apply a stricter standard when making final custody orders. The test applied is called the “changed circumstances” test. The “changed circumstances” standard is stricter, and harder to modify. Once an order is final, the Court must apply “changed circumstances” in order to modify; as this helps preserve continuity and stability in custodial arrangements.
These final orders are known as “Montenegro” final custody orders, after the case from which this law spawns.
When is an Order a Montenegro Final Custody Order?
Under Montenegro and other appellate decisions, a final judicial custody determination can occur in two scenarios:
1) A stipulated custody order where there is a “clear affirmative indication the parties intended such a result.”
2) When the Court makes a judicial decree after the issue of custody has been litigated in trial or in a post-judgment modification.
Only Applies to Change in Custody; Not Little Revisions to Schedule
Note that Court will only apply the “changed circumstances” analysis as it relates to a modification or final determination of custody. If the parent is attempting to modify visitation (such as extending visits a few hours, or possibly overnight), the Court will still apply the “best interests” analysis. (121 Cal.App.4th 1371, D041780, Enrique M. v. Angelina V_