Can I Ask the Judge to Reconsider a Custody Order?

By H. William Edgar | Edgar & Dow

If a custody ruling goes against you, the first question is what has changed since the judge ruled. A motion under Code of Civil Procedure § 1008 has specific requirements and a short deadline. I look at the signed order, service, and the information the court did not have before deciding which route makes sense.

Obtain the entered order and proof of service before choosing what to file. Write down what the judge decided, what you believe should happen next, and which facts or documents support your request. The court will need more than the label you give the motion. The remedy should match the order and the reason you want it changed.

When can the same judge reconsider a ruling?

Code of Civil Procedure § 1008(a) generally allows an affected party to ask the same judge or court to reconsider an order on the basis of new or different facts, circumstances, or law. The statute requires the application within 10 days after service on the party of written notice of entry of the order. The form and timing of service, and the nature and status of the ruling, should be evaluated from the actual documents.

The motion should identify the prior application, when and before whom it was made, what the court decided, and what new or different material supports reconsideration. The supporting declaration should explain why that material was not presented before. California decisions applying § 1008 generally require a satisfactory explanation of diligence. If the information existed before the hearing, describe what you did to obtain it, when you learned it was available, and how it bears on the ruling.

For example, assume a custody order was based partly on when a child could receive a particular school service. An official determination unavailable despite documented requests before the hearing might warrant review if it directly changes the factual premise on which the court ruled. By comparison, collecting letters from people who could have testified before the hearing raises a different diligence issue. The court needs facts it can evaluate, including the date each request was sent and the date any response arrived.

Read Code of Civil Procedure § 1008.

When the judge revisits an interim ruling on the court’s own motion

Le Francois v. Goel (2005) 35 Cal.4th 1094 distinguishes a party’s motion under Code of Civil Procedure § 1008 from a court’s authority to revisit its own interim ruling after notice and an opportunity to be heard. Continue to track any independent review deadline while the issue is pending.

Does reconsideration let me present the same argument again?

The court expects a qualifying basis tied to the prior decision. A longer declaration or a different emphasis on the same evidence will rarely supply that basis. If you believe the judge applied an incorrect rule based on the evidence already presented, counsel should separately evaluate appellate review and any posttrial motion supported by the record.

Some parents discover that an issue they thought was presented was never included in their original request. Others discover that a key exhibit was marked but never admitted. Review the record before characterizing either problem as new evidence. The prior papers and transcript can show whether the court actually reached the issue and whether it had the material before it. Our guide to appealing a custody order explains why those distinctions matter when evaluating appellate review.

Section 1008 also addresses a subsequent application for the same order after a previous application was refused. That procedure has its own requirements. If a request was denied and you are preparing to ask again, give counsel the prior motion and ruling. The distinction between a renewed application and a new custody-modification request can matter to what you must show.

What if the written order does not match what the judge said?

Compare the hearing record, minute order, any statement of decision, and the signed order. A clerical mistake can sometimes be corrected so the written record reflects the ruling actually made. A claimed judicial error involves the decision itself and may require a different remedy. The distinction turns on the record, including whether the disputed wording reflects an intentional ruling.

For example, suppose the judge expressly ordered exchanges at 6 p.m. and a filed order inadvertently says 8 p.m. The transcript may support a request to correct the written order. If the judge intentionally ordered 8 p.m. and you believe 6 p.m. would work better, the question becomes whether there is a procedural basis to challenge or change the ruling. Preserve the proposed drafts and any objections made during preparation of the order so counsel can reconstruct what happened.

When is a motion for new trial an option?

A motion for new trial can be available after a qualifying decision. Its reach can extend beyond the conventional full trial, but an ordinary interim custody order presents a different question. Code of Civil Procedure § 657 sets out grounds, including specified procedural irregularities, qualifying newly discovered evidence, insufficiency of the evidence, and certain errors of law. Each ground has its own showing.

The procedure typically begins with a notice of intention to move for a new trial under Code of Civil Procedure § 659. The notice must be timely and identify the grounds. The rules governing how each ground is presented can differ. Some rely on the trial record and some require supporting declarations. Counsel should immediately check entry and service dates, what type of decision was made, and the deadline to file.

A motion to vacate and enter a different judgment under Code of Civil Procedure § 663 may be available in specific circumstances, such as a legal basis inconsistent with or unsupported by the findings. A default or claimed lack of notice can implicate still other procedures. Identifying the specific defect helps counsel decide what relief to request and what deadline applies.

If your contested hearing is still ahead, our custody trial guide discusses how to present evidence and obtain a record that shows the trial court’s reasoning.

When should I ask to modify custody instead?

If the important events occurred after the prior order and you want an updated arrangement for your child, a request to modify may be the appropriate route. The required showing depends on whether you are seeking to change a final custody determination or adjust a parenting schedule without changing custody in substance.

A final custody determination generally requires a significant change of circumstances before custody is changed. Under Montenegro v. Diaz (2001) 26 Cal.4th 249, a stipulated custody order is treated as final for this purpose when there is a clear, affirmative indication that the parties intended finality. In In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, the court distinguished a visitation change from a change in custody. For a parenting-time request, the court looks at what the proposal would actually do.

Imagine a child starts school after the order and the existing Sunday exchange routinely interferes with attendance on Monday. A narrowly tailored proposal to change the exchange time may present a parenting-time question. A request to transfer the child’s primary residence and most school nights may affect custody in substance. The proposed order and the child’s actual schedule help identify the governing standard.

New facts can also change who is entitled to seek relief. If a parent has died, our guide to custody after a parent’s death explains how the surviving parent, relatives, and an existing guardianship can affect the available procedure.

Is there a special rule for a conviction involving a false child abuse accusation?

Yes. Family Code § 3022.5 requires the court to grant a parent’s motion for reconsideration of an existing child custody order if the other parent was convicted of a crime in connection with falsely accusing the moving parent of child abuse. In re Marriage of Hobdy (2004) 123 Cal.App.4th 360 discusses this specific right to reconsideration and its relationship to the ordinary § 1008 procedure.

The fact that an allegation was disputed, dismissed, or unsubstantiated does not establish the statutory conviction. Bring the certified criminal disposition, the relevant custody orders, and the timeline of the allegations. A successful request under the statute results in reconsideration of the custody order. The custody decision still requires the court to apply the applicable standards.

Read Family Code § 3022.5.

What happens to the order and my appeal deadline in the meantime?

A request for reconsideration does not itself stay the custody order. Keep following the operative terms unless a stay or later order changes them. If your child is due to leave California, see our guide to the out-of-state move stay and tell counsel the expected departure date immediately. If someone is already disregarding the order, our custody contempt guide explains the proof required for that separate remedy.

A valid motion under § 1008(a) directed to an appealable order can extend the time to appeal that order under California Rules of Court, rule 8.108(e). The rule is conditional and uses the earliest of multiple dates. The denial of reconsideration is generally reviewed through an appeal of the underlying order, where appealable. Have counsel calendar the original deadline and evaluate any extension from the served documents. Waiting for a hearing on an invalid motion can leave the original appeal deadline running.

Read the California rule on extensions of time to appeal.

How can I organize the facts before deciding which motion to file?

Create a timeline with the original request, the hearing date, entry and service of the order, and the date you learned each new fact. Identify which facts existed before the hearing and what you did to discover them. Keep the source of each fact. An email showing when a school gave a definitive response can help establish timing more reliably than a later recollection of a phone conversation.

Next, state what you want the court to do in one sentence. You may want the written order corrected to match the ruling, the original issue reheard because material evidence was unavailable, or a new schedule that accommodates a change in the child’s circumstances. Those requests call for different supporting papers. If the child faces an immediate problem before a motion can be heard, identify the interim relief needed and the date the problem will arise.

Consider a ruling based on the assumption that a parent could pick up the child every Tuesday. A transcript showing the court ordered Thursday while the written order says Tuesday may support a correction. An employer document that existed before the hearing but was unavailable despite timely requests may support a different analysis. A work assignment imposed only after entry of the order may support a prospective schedule change. These cases can look similar on a calendar while raising different questions about what the court can do.

What if the other parent agrees the order needs to change?

An agreement can narrow the dispute and may be submitted for court approval where appropriate. Put the terms in writing, including the effective date, which parts of the existing order would change, and any new exchange or transportation obligations. Ask counsel whether the agreement should be submitted as a stipulation and proposed order. Keep a copy of the filed order when the court acts.

If either parent is considering an appeal, stay request, or time-sensitive motion, calculate the deadlines while negotiations are pending. A proposed agreement may still need signatures or court approval when a deadline arrives. Send counsel the latest version and identify what remains unresolved.

Explore the California Child Custody and Visitation Library for more guides on changing and enforcing custody orders.

Speak with Edgar & Dow about the ruling and the deadline

If you recently received a custody ruling and have new evidence, believe the written order contains an error, or need to challenge what the court decided, contact Edgar & Dow to schedule a consultation. Send the filed order, any notice of entry, proof of service, and the original papers. Tell us when the new facts became available and when the next exchange, hearing, or move is scheduled. We can assess which procedure fits and which deadlines require action first.