Just When You Thought It Was Over: The Post-Judgment Custody & Visitation Proceeding

By Cara L. Boroda,  Esq.
Van Oorschot Law Group PC

Family law cases typically entail ongoing issues rather than a distinct event, for example, child support, custody, and visitation. Thus, family law builds in the necessary flexibility to accommodate changing circumstances for these dynamic matters. In most other areas of the law, once a judgment or final settlement is reached, the deal is final; there is no going back to modify the terms.

Family law judgments are also deemed to be final when entered by the Court, except when it is discovered that there was an omitted community asset or debt; or when circumstances justify the modification of child custody, child support and, sometimes, spousal support orders.  When any of these issues arise after a Judgment of Dissolution has been entered with the Court, a “post-judgment” proceeding is underway.  

Since the failure to disclose an item of community property is not the most common way a post-judgment proceeding arises, this post focuses on a few things you should know about modifications of custody/visitation, child support, and spousal support orders:

Custody/Visitation.  The modification of custody and visitation orders depends on the provisions of the Judgment of Dissolution (or Judgment of Parental Relationship).  If the Judgment states, or is deemed to be “final”, a term defined by the case of Montenegro v Diaz (2001) 26 Cal.4th 249, then the party who seeks to modify the Judgment must prove: (1) a change of circumstances occurred since the time the Judgment was entered, and (2) that the change is in the best interest of the children.  If the Judgment states or is deemed to not be “final”, it is more easily modified because the standard and proof necessary to modify the Judgment is based upon the best interest of the children.

Child Support.  Child support orders are always modifiable until a child reaches the age of 18 or 19 and graduates high school, whichever first occurs. The modification of a child support order is based on whether there has been a significant change of circumstances to warrant a change.  Typical changes include, but are not limited to a change in a parent’s income; a child reaches the age of majority; a change in custodial time parents spend with the children; remarriage of a parent; new children; or, the purchase or sale of home (i.e., change in property taxes or mortgage interest).  

It is important to recognize that the earliest date a modification can occur in most cases is the date a motion is filed with the court to seek a change. This means that changes in support are intended to be prospective.  If there was a very good or bad economic past year, neither party can recoup that reality in a support number (unless a Judgment provides otherwise), so it is wise to exchange tax returns annually to minimize under/over payments in the next year.

Spousal Support. Unlike child support, a spousal support order may have time limits, ceilings and floors in the amount paid, and other limitations derived from the myriad of factors set forth in Family Code section 4320.  Therefore, the modification of spousal support is often dependent upon the specific terms set forth in the Judgment of Dissolution.  If the Judgment does not provide specific direction about a modification, then a significant change of circumstances will need to be shown. However, when an upward modification is sought, this request may be met with a ceiling known as the marital standard of living.  If the marital standard of living was not addressed in the Judgment, this issue could very well become a significant part of the litigation or negotiation of a post-judgment request to increase spousal support. 

It is also important to know if the Judgment to be modified provides for tax-deductible/tax includable spousal support or not, as the law on taxability changed a few years ago.  This issue matters because the taxability or non-taxability of spousal support must be addressed in the modified order and is dependent upon that original taxable nature of the Judgment.  If it is determined that an order is tax-free, be careful because as of the year 2021, the State of California does not follow federal rules and instead allows for spousal support to be tax deductible/includable unless provided for otherwise.  Needless to say, spousal support is a complex area of the law whether in its initial order or modified order.

Conclusion.   Post-judgment proceedings are not an opportunity to relitigate or renegotiate a settlement or court order due to “buyer’s remorse”.  Rather, post-judgment proceedings are intended to modify very specific orders that are deemed to be fluid and ever-changing in familial relationships, which has been acknowledged by family law by specifically providing such modifiability of support and custody orders.