The finality of custody orders is one of the most important, if not most overlooked, aspects of child custody in California.

When a couple first divorces, a Court will typically apply the best interests of the child analysis as specified in Family Code § 3011. In determining the best interests of the child, the Court is primarily concerned with the health, safety, and welfare of the minor child. 

When a couple first divorces, a Court will typically apply the best interests of the child analysis as specified in Family Code § 3011. In determining the best interests of the child, the Court is primarily concerned with the health, safety, and welfare of the minor child. 

When would a Court ever care about anything besides the best interests of the child? 

In certain circumstances, the Courts will apply a “changed circumstances” test as an adjunct to the “best interests” test. In Montenegro v. Diaz (2001) 26 C4th 256, the Court clarified when a stricter standard should be applied.  The Court found that if a custody order is “final,” the Court should apply a stricter standard to help preserve continuity and stability in custodial arrangements. 

If a custody order is deemed to be “final,” the Court will require a showing of a significant change of circumstances so affecting the child that modification of custody is deemed essential to the child’s welfare. This is known as the “changed circumstances” test. Only if this requirement is met will the Court move to the best interests of the child analysis. 

What is a “final judicial custody determination”? 

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. 

For scenario 1), it’s as simple as language in a Marital Settlement Agreement that states that the custody language is final.  Such language may read as follows: 

“The parties agree the child custody, visitation and sharing provisions of this Agreement are in the best interests of the minor children. They further agree that the child custody provisions of this Agreement are deemed to be a final judicial custody determination under Montenegro v. Diaz (2001) 26 Cal.4^th 249.” 

For scenario 2), it should be noted that there are several instances where a Court will make a judicial decree after litigation and the decree will not be considered a final custody order. Any custodial determination made at a hearing on a temporary or permanent restraining order or at a pendente lite hearing (i.e. a hearing requesting temporary orders) is not considered a final order.  (Marriage of Lewin (1986) 186 CA3d 1482. 

What about just changing the visitation schedule? 

It should be noted that a Court will only trouble itself with determining if there is a final judicial custody determination when a party is trying to change custody, not when a party is merely trying to modify or tweak the parenting time. That is, the Court will only consider applying the “changed circumstances” test when a party is trying to change the custodial arrangement from either sole to joint custody, or vice versa.