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.
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