Final Order in Family Law Case Is Not Always Closure

Los Angeles Daily Journal, Vol.117, Issue 219, November 10, 2004

When a hotly contested child custody case spills over into a juvenile dependency case, most family law attorneys will not continue handling the child custody portion of the case in this new arena. Once a dependency matter is commenced, the child custody portion of the family law case is stayed. However, remaining family law issues, such as property division and support are not stayed. Typically, a family law attorney will wait until the dependency case has terminated to resume working on child custody issues. The recent case of In Re Marriage of David M. and Martha M. (2006)DJDAR7065 (”David M.”, suggests that the family Law practitioner may want to have input in the dependency matter before dependency jurisdiction terminates.

The jurisdiction of the dependency court over a child terminates after the dependency court makes an order pursuant to Welfare and Institutions Code Section 362.4. These orders are called exit orders. The exit order not only releases a child from dependency court jurisdiction, but also may provide a specific plan with regard to further custody and visitation for the parties and the child.

However, the dependency court exit order may conflict with the jurisdictional powers of the family law court. This was noticeable in the case of In Re Chantal S. (1996) 13 Cal 4th 196; 51 Cal Reporter 2nd 866. In that case, part of the exit order specified ongoing and open ended counseling as a condition for visitation. Once the exit order transferred the matter to the family law court, the case was now subject to statutory restrictions of the Family Law Act. The counseling provisions in family law, are more restricted in time and type than counseling orders that are made in dependency court. For example, Family Code Section 3190 limits counseling involved in a custody and visitation dispute for a time “not more than one year”. Once the exit order in Chantal S., was addressed in the family law court, the court had to apply counseling as specified under the family law act, and as such the exit order was modified.

A more recent example of the troublesome nature of exit orders for family law attorneys, can be found in the case of David M. In that case the appellate court determined that as a matter of law, an exit order pursuant to Welfare and Institutions Code Section 362.4 is a final custody order, consistent with Montenegro v. Diaz (2001) 26 Ca4t 249. (”Montenegro”) In Montenegro, the court held that in a Stipulated Judgment of custody unless there is a clear statement by the parties that the child custody order is a final order, said child custody order will be treated as a temporary order requiring a reduced burden to modify same. The court in Montenegro held that when modifying a temporary custody order, the burden is only to show what is in the present best interest of the children. However, with a final custody order, the burden to modify custody requires a showing of a substantial change of factual circumstances that effect the best interest of the children.

Subsequent to the Montenegro, courts have expanded the definition of what constitutes a temporary custody order. In the case of In Re Marriage of Richardson (Cal App 4th 941)(2002), the court stated that absent a “clear, affirmative indication that the parties intended the stipulation … to be a final judicial determination of custody, the father was not required to show that a significant change of circumstances justified modifying the custody order.” (page 952)

As a practical matter, the holding in Montenegro, was extremely significant. The court in Montenegro had indicated that child custody matters often involve fluid factual situations. The developmental needs of the children often change over time. As such, from time to time a divorced family may need judicial intervention to address certain situations. The Montenegro case and its progeny have enabled the court to have a mechanism for parties to address the current needs of children, without creating a high evidenciary burden the next time the court needs to be involved.

However, in David M., the appellate court treated the final order from dependency court as a final determination of custody. The facts of David M. are somewhat troubling. The court indicated that the exit order came very shortly after the parties had arrived at a mediated agreement as to visitation. However, the case is silent as to whether or not the parties had made any indication in the mediated agreement that they intended to agree to a final custody order. Had this mediated agreement arisen out of a family law court, it would clearly have been a temporary custody order under Montenegro. Absent a clear and unambiguous statement of the parties intentions, the order would have been characterized as a temporary order of custody. However, this mediation arose within a dependency case and David M. arguably stands for the proposition that a stipulated exit order from dependency court, as a matter of law, is a final custody order.

Family lawyers when confronted with the possibility of a child custody case terminating in dependency court, should be involved as soon as possible in drafting the exit order. In light of David M. and the fact that one needs a substantial change of circumstances to modify an exit order, the exit order should specify the conditions and assumptions in existence upon which the order was based. Further, such assumptions should be labeled as material assumptions, so that if any assumptions fails, then one can argue that the failure constitutes a substantial change of circumstances and that the order can be modified.

David M. is contrary to the trend of family law appellate courts decisions that seek to find a clear indication that the parties in a stipulated custody case intended the order to be a final judicial determination of custody. Exit orders from dependency court can be a serious impediment in any subsequent modification of child custody orders in family law courts, making it more difficult for the parties to properly address the ever changing and future needs of children.

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