Tuesday, January 7, 2020

What does the phrase “This is not a final order under Montenegro v. Diaz” mean and should we or shouldn’t we include it in our mediated settlement?

Some preliminary background

         In order to understand this case reference, we need to start with a little background in custody law.   Everything that a court does is based on legal definitions or provisions that are set out either in legislative law or case law.  When a judge considers a custody dispute at a hearing in court, they use a standard of analysis called “best interests of the child.”   This means the judge’s decision has to be based on the “best interests of the child.”  Montenegro v. Diaz is a case which was decided by the California Supreme Court which established law regarding child custody determinations.  Pursuant to the Montenegro case, as well as related custody law, “When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents.”  (Montengro v. Diaz, (2001) 26 Cal.4th 249.)

What makes an order final?

         A custody order is considered final either when a custody order is made at trial or a post-judgment custody hearing or if the parties reach a stipulated judgment and agree that their custody agreement will be a final order by including language in their agreement that is a clear, affirmative indication the parties intended such a result.

What happens if one party wants to change custody?

         Sometimes a parent will want to change the custody orders.  If the parents are unable to reach an out of court agreement regarding a potential change and the parties have to go to court for a court to hear the disagreement, how the court considers the request depends on whether the existing order is final.   According to the Montenegro case, if the existing custody order is final, the policy of the law prevents a court from making a custody change unless there have been significant changes of circumstances.  These words “change of circumstances” are key words because the court requires that the parent who wants the changed custody plan show that the circumstances that exist now are substantially changed from the time when the initial order was made.  If not, the court will not consider the request.

Does Montenegro apply if we just want to change the schedule?

         Montenegro only applies to custody determinations.  Custody refers to whether parents will have joint custody or if one parent will have sole custody and applies to either legal or physical custody.  The schedule that describes which days and times the children are with each parent is about parenting time and not about custody.    If the issues are only about parenting time, the rules of Montenegro relating to final judicial custody determinations and the application of the test of change of circumstances does not apply.

How do we decide how to address this Montenegro language?

         The issues about how to address future custody issues need to be determined between the parents.  If either parent wants to have the language that the custody order is a final order, this is an issue that should be raised during your mediation.  Questions that you have about final custody language should be discussed with your consulting attorney.