A party seeking to change custody is required to establish a substantial change in circumstances in order to modify a final custody order. Burchard v. Garay (1986) 42 Cal. 3d 531; 229 Cal. Rptr. 800. A preliminary showing of a change of circumstance is required before the court may take testimony on the best interest of the minor child. Speelman v. Superior Court (1984) 152 Cal. App. 3d 124, 199 Cal. Rptr. 784.

In In re Marriage of Lewin (1986) 186 Cal. App. 3d 1482, the court of appeal further confirmed that in a post-judgment proceeding to modify custody, the moving party must first establish that there has been a significant change in circumstances. The Lewin court stated:

"If a final determination is made, the court can thereafter look to see how, if at all, circumstances have changed. The reasons for the rule are clear: `It is well established that the courts are reluctant to order a change of custody and will not do so except for imperative reasons; that it is desirable that there be an end to litigation and undesirable to change the child's established mode of living.'" ( Id. at 1486) (Emphasis added.)

In Burchard, supra the Supreme Court stated that a parent who seeks custody does not need to show a change of circumstances if no prior judicial determination has been made. However, the court further stated that because public policy favors maintaining stability in a child's life, a noncustodial parent who requests a change of custody bears the burden of persuading the trier of fact that the change is in the child's best interest.

Regardless of how custody was originally decided upon, after the child has lived in one parent's home for a significant period, it surely remains "undesirable" to uproot him from his "established mode of living", and a substantial change in his circumstances should ordinarily be disapproved.

With respect to the child's preferences, the court must "consider" and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason so as to form an intelligent preference as to custody." ( Cal. Fam. Code 3042 (a)) The issue of the threshold prerequisite to consideration of the child's wishes, "of sufficient age and capacity," varies with each child. The requisite maturity is not measured by any particular chronological age. While most courts become more receptive to the child's preference as they approach adolescence, some will even listen to younger children. In addition, the court has determined that a 14 year old boy did not meet 3042 standard and thus refused to shift custody from the mother despite the child's wishes. Marriage of Rosson, (1986) 178 Cal. App. 3d 1094.

Domestic Abuse Proceedings to Affect Custody Modification

Family Code 3022.5 provides as follows

A motion by a parent for reconsideration of an existing child custody order shall be granted if the motion is based on the fact that the other parent was convicted of a crime in connection with falsely accusing the moving parent of child abuse.

Family Code §3011 provides as follows:

In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:

(a) The health, safety, and welfare of the child.

(b) Any history of abuse by one parent or any other person seeking custody against any of the following:

(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.

(2) The other parent.

(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.