California Marital Settlements: October 2001 Summary

Legal Developments

Stipulated Custody Orders Modifiable Unless Clearly Intended as Final

On July 30, 2001, the California Supreme Court held in Montenegro v. Diaz (2001) 26 Cal.4th 249, 109 Cal.Rptr.2d 575, that "a stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule only if there is a clear, affirmative indication that the parties intended such a result." In the absence of such an indication of finality, a stipulated custody order may be interpreted as only temporary in effect, and therefore may be modified based on the child(ren)'s best interests, without a showing of changed circumstances. The commentary in the Custody section of the program has been updated to reflect this ruling, and a new question has been added that allows you to insert a clause into the document specifying whether or not the custody provisions are intended to be a final custody determination. Qs 467, 470, 472 (new question), 475