When Does Child Custody Modification Become Necessary?

child custody modificationChild custody modification often becomes necessary when family situations change. Upon separation, parents must determine an appropriate custody arrangement. If parents cannot agree, then the court may issue an order that is in the best interests of the children. If either parent desires a change to that agreement or order, a child custody modification should be sought.

The Law Offices of Rick D. Banks can help you with child custody modification. Attorney Rick Banks has the experience and skills necessary to help you do what’s best for you and your family.

Types of Custody in Child Custody Orders

Every child custody order will address two types of custody:

  • Legal Custody: This may be granted to one parent or both and involves the legal right to make important decisions about the life of a child, including health care, religion, and education.
  • Physical Custody: This also may be granted to one parent or both. Physical custody is the time physically spent with a child. Parents with physical custody are responsible for decisions based on the basic needs of a child, including food and housing.

It is common for the courts to grant joint legal custody to both parents. This allows both parents to have an influence on the lives of children. However, physical custody is typically primarily granted to one parent; although it is possible to award joint physical custody if physical time spent with both parents is split evenly.

When parents agree to custody terms, the court will typically allow the arrangement as the parents see fit. However, the court will consider what is in the best interests of the child when making determinations of custody. When determining legal and physical child custody, it’s important to have the help of an experienced lawyer who can help you make the best decisions for everyone involved.

Reasons for Child Custody Modification

While child custody is typically determined when parents separate, a child custody modification is often necessary at a later date. Child custody should be evaluated approximately every three years or at any time because of changing circumstances in the lives of parents and children.

Some reasons for child custody modification include:

  • Circumstances have changed since the original agreement or order;
  • Your child’s custody arrangement will be unstable without change;
  • Change is in the best interest of your child;
  • Your child is in danger due to domestic violence, child abuse, or drug abuse;
  • There is an insufficient fulfillment of court-ordered time between a parent and the child;
  • Change is necessary to support your child’s emotional or developmental needs;
  • Either parent is physically relocating to a distant location; or
  • A parent has passed away.

If you and your loved ones have experienced changes in your lives that warrant re-evaluation of child custody, The Law Offices of Rick D. Banks can help you obtain a child custody modification. You may be able to come to an agreement with your child’s other parent, or you may need to seek a court order. In either case, we can guide you through the process.

How to Obtain a Child Custody Modification

There are two ways to obtain a child custody modification:

  • Voluntary Agreement: With a voluntary child custody modification agreement, both parents agree on new terms of child custody and an agreement is drafted, signed, and filed with the court. It can be helpful to have an attorney who is familiar with the process to expedite the modification and ensure both parties understand the agreement.
  • Court Order: When parents cannot agree, you may seek a court order. In order to obtain a child custody modification from the court, you must first file a Petition to Modify Custody Order. The petition will state why a modification is necessary and the court will make a determination based on the best interests of the child. When parents disagree with one another, an attorney can ensure your rights are respected and the best interests of your child are acknowledged.

The court is most interested in the best interests of the child. The court will generally assume that when both parents agree to a modification, the situation is in the best interests of the entire family. However, when the court makes a determination, it often has to weigh the desires of all parties.

We Can Help You Obtain a Child Custody Modification

When life changes negatively impact your child, you may want to seek a child custody modification to better serve your child’s interests. You can achieve this through an agreement or a court order. A dedicated and compassionate lawyer at The Law Offices of Rick D. Banks can help you achieve a beneficial child custody modification. Call us today at (559) 222-4891.

What Happens If the Child Custody Agreement Is Violated?

child custody agreementA child custody agreement is a voluntary decision made by parents to determine legal and physical custody issues. When a parent violates that agreement, they are taking actions that are against what has been determined to be the best interests of the child.

If your child custody agreement has been violated or if you’re being accused of a violation, you should seek an experienced lawyer to help you deal with the situation. The Law Offices of Rick D. Banks can help.

What Is a Child Custody Agreement?

A child custody agreement is a legal document that parents file with the court to establish custody of their child when they separate. Custody agreements are voluntary. The court therefore typically assumes that if both parents agree, the interests are the child are best served. Custody agreements deal with two types of custody:

  • Legal Custody: Courts often award this to both parents jointly and gives them the right to make decisions about how a child is raised, such as education, health care, and religion.
  • Physical Custody: Courts may award this to one or both parents and establishes who meets the physical needs of a child, such as food and housing. The parent who spends the most physical time with a child usually has primary physical custody.

A child custody agreement is most beneficial when it establishes specific guidelines for things like education, religion, and other key elements of a child’s life. When it does not, a parent may disagree with the decisions being made by the other parent. Disagreements can lead to both confusion and stress within the entire family.

What Constitutes a Violation of a Child Custody Agreement?

If either parent does something that has been prohibited within the child custody agreement, or if either parent fails to do something required, they may be in violation of the agreement. Some examples of violations include:

  • Refusal to respect visitation rights;
  • Taking the child when it is not a designated visitation time;
  • Taking the child out of state or out of the country without alerting the other parent;
  • Speaking poorly of the other parent or family members;
  • Taking the child to religious activities outside of the agreement;
  • Exposing the child to domestic violence, child abuse, or drug abuse; and
  • Smoking or drinking alcohol around the child.

Most child custody agreements address these issues and establish the best interests of the child. If a parent does something that is contrary to the agreement, they can be found in violation of that agreement. In some situations, a parent may be in contempt of court orders. Or they may be found guilty of a crime, like kidnapping.

What Should I Do If My Child Custody Agreement Is Violated?

If your child’s other parent violates your child custody agreement and your child is in danger, you should call the police as soon as possible. A violation of the guidelines that are in the best interests of a child may put your child in danger.

If your child is not in immediate danger, you should contact a skilled child custody lawyer right away. Your lawyer can evaluate your child custody agreement, and then help you determine if it has been violated. The first step should be to calmly talk to the other parent and request adherence to the agreement. If the other parent refuses, you may need to subsequently seek a court order.

An experienced lawyer at The Law Offices of Rick D. Banks can guide you through the process of obtaining a court order that will require the other parent to adhere to the agreement.

What If I’m Being Accused of Violating a Child Custody Agreement?

If your child’s other parent is accusing you of violating your child custody agreement, you should take that accusation very seriously. You may be facing a contempt order or a criminal charge. You should speak with an attorney as soon as possible to determine your best options.

If your child custody agreement is no longer in the best interests of the child, and it is not beneficial to adhere to the guidelines that were established, you may need to seek a modification of the agreement. This can be done through a voluntary modification where both parents agree or through a court order. When determining whether a child custody agreement should be modified, the court will look at the best interests of the child.

Seek Legal Assistance for Violation of a Child Custody Agreement

A child custody agreement should establish guidelines that are in the child’s best interests. If that agreement is being violated, then you may need to seek intervention from the court. If your ex-spouse accuses of violating an agreement, you may face serious consequences. In either situation, you need the help of an attorney. Call the Law Offices of Rick D. Banks today at (559) 222-4891.

Legal Rights of Stepparents in California

legal rights of stepparentsMany parents who separate eventually remarry, establishing legal rights of stepparents who are in the lives of their children. In fact, according to the National Healthy Marriage Resource Center, as many as 20% of children have at least one stepparent. When stepparents are involved in the lives of children, they often seek legal rights that are similar to those of biological parents. If you have questions about your legal rights as a stepparent, experienced family law attorneys at The Law Offices of Rick D. Banks can help.

Who Is a Stepparent?

Legal rights of stepparents are only available to people who have entered into a legal marriage that is recognized by California. If you were never legally married to a child’s biological parent, then you may not have any legal rights in California.

A stepparent may also be an adoptive parent. Adoptive parents have all the same rights and responsibilities to children as biological parents. If you are interested in gaining legal rights of stepparents through an adoption, seek the assistance of a skilled lawyer. We can help you with all issues involving stepparent rights.

Legal Rights and Responsibilities of Stepparents

Legal rights of stepparents may mirror those of biological parents; however, stepparents’ rights do not typically challenge those of biological parents. That is, a stepparent who plays a vital role in the life of a child may gain custody or visitation rights. However, a stepparent can only rarely intervene in the rights of a biological parent.

In addition to legal rights, stepparents may also have responsibilities to their stepchildren. Those responsibilities may be voluntarily sought by stepparents who willingly step into the lives of children. The court will rarely impose legal responsibilities on a stepparent unless they have been elected by the stepparent.

Some responsibilities and legal rights of stepparents include:

Stepparent Visitation

Under California Family Code 3100, a court may grant a third party, including a stepparent, grandparent, or other person, who has an interest in the welfare of the child, visitation rights. When considering stepparent visitation rights after a divorce, the court would consider the extent of the role and the length of time the stepparent was in the life of the child.

Stepchild Custody

If a stepparent seeks custody of a child, the court will consider whether the biological parents are still able to participate in the child’s life. In general, the court will give primary custody to biological parents. However, if biological parents both pass away or are unable to care for the child due to drug abuse, mental illness, or another reason, then a stepparent may gain primary custody.

Stepchild Support

There are no statutes in California that impose stepparent child support, even if stepparent visitation has been ordered. However, many other states do allow for stepchild support in certain circumstances. If a stepparent gains custody of a stepchild, it may be possible to seek child support from a biological parent.


Under the law, stepchildren have no right to their stepparents’ estates. That is, unless they are named in a will or they were legally adopted. It is important to deal with estate planning issues so that stepchildren are included in inheritance.

Stepparents Acting “in Loco Parentis”

When a stepparent takes on the same rights and responsibilities as a biological parent, they are acting “in loco parentis.” In loco parentis is a Latin term that describes a third party who steps into the place of a parent and functions as a biological parent. You may be seeking to take on the legal rights of stepparents. Courts may consider a stepparent to be acting in loco parentis if:

  • There is a strong bond between the stepparent and stepchild;
  • You intend to assume parental status over your stepchild;
  • You take on the duties of a biological parent;
  • The stepparent is the only parent the child has ever known; and
  • One or both biological parents are absent.

A stepparent who is acting in loco parents may have similar legal rights and responsibilities under the law as a biological parent. If you are seeking legal rights of stepparents and hope to act in loco parentis to your stepchildren, you should seek the legal assistance of a skilled attorney.

We Can Help You Obtain Legal Rights of Stepparents

At the Law Offices of Rick D. Banks, we understand that stepparents often play a vital role in the lives of stepchildren. When a biological parent and stepparent separate, the stepparent may consider seeking custody of visitation rights. Stepparents may also step in to function as a parent in circumstances where biological parents are unable to care for children. We can help you seek legal rights of stepparents in California. Call attorney Rick D. Banks today at (559) 222-4891.

Understanding California Divorce Laws

California divorce lawsIf you are separating from your spouse, it’s important to understand California divorce laws. Divorce can be devastating. You may be unsure of where to turn and what steps to take next. We can help. Our compassionate family law lawyers at The Law Offices of Rick D. Banks can guide you through the divorce process.

Starting a Divorce in California

In order to start a divorce in California, you must understand residency requirements and where to file your dissolution. According to California Family Code Sections 200, 2320, at least one party of the marriage must have been a resident of the state of California for at least six months prior to the filing of the petition for dissolution. Furthermore, at least one party must have been a resident of the county in which the dissolution is being filed for at least three months.

California divorce laws state that if a same-sex couple lives in a location that does not recognize same-sex marriages and they were married in California, then they may seek a dissolution in the county where they were married in California.

Grounds for Divorce in California

According to California divorce laws, a dissolution of marriage may be granted for the following reasons:

  • Irreconcilable differences
  • Incurable insanity

Legal Separation in California

If you want to seek a legal separation, you must still meet the same residency requirements and grounds. A separation may be sought instead of a divorce or while a divorce is taking place. Divorces can take years to achieve due to issues with child custody, property distribution, and debt separation. Once a legal separation is in place, income and property is accumulated separately and is no longer considered community property.

Restoration of Former Name in a Divorce

California divorce laws state that the court will restore a party to their birth or former name in a dissolution or annulment, but not in a proceeding for legal separation.

Counseling and Mediation Requirements

Counseling or mediation may be required in a dissolution in the following circumstances:

  • A minor child is involved; or
  • The controversy involves domestic violence.

The family conciliation court has jurisdiction over controversies involving minor children and domestic violence. This allows families to seek necessary counseling and mediation and avoid conflict in court.

Property Distribution in California

One of the most concerning issues in a divorce is property distribution. According to California divorce laws, all real and personal property acquired during a marriage is community property. That is, it immediately becomes the property of both parties equally. Upon separation, the property obtained during the marriage will be equally divided between the spouses.

Exceptions to property that will be equally distributed include:

  • Property owned before marriage;
  • Property acquired by gift, bequest, devise, or inheritance;
  • Income obtained through property belonging to one party; and
  • Property obtained during a legal separation.

A person may convey ownership of their own share of the property without knowledge of their spouse, even during the marriage.

Alimony and Spousal Support in California

Spousal support may be ordered in California in some situations. The court will consider the following under California divorce laws:

  • Both spouses’ ability to maintain their standard of living that was established during the marriage;
  • The ability of the support seeking spouse to obtain self-supporting employment;
  • How the future earning capacity of the support seeking spouse was impacted by devotion to domestic duties;
  • Whether the support seeking spouse contributed to the attainment of education and career position of the supporting spouse;
  • The ability of the supporting spouse to pay alimony;
  • The needs of both parties;
  • Other obligations and assets of both parties;
  • The duration of the marriage;
  • The interests of dependent children;
  • The age and health of both parties;
  • Any history of domestic violence;
  • The tax consequences of both parties;
  • Hardships of both parties;
  • Goals of self-support within a reasonable time period; and
  • Other factors the court deems just and equitable.

Child Custody and Support in California

Child custody and support are also issues that may be dealt with in a divorce. Custody may be awarded to either parent, with no preference to either mother or father. The court will make an order regarding legal custody and physical custody that is in the best interests of the children under California divorce laws. The spouse that gets primary physical custody of the child or children may also be awarded child support from the other parent. It is important to have a skilled lawyer to help you deal with child custody and child support issues in California.

Understanding California Divorce Laws

Separation from your spouse can be stressful and confusing. It’s best to obtain legal assistance from an experienced lawyer to help you through the process that involves complex California divorce laws. Call The Law Offices of Rick D. Banks today at (559) 222-4891.