Montenegro Orders: What Are They And How Do They Affect Custody And Visitation?

Pendente Lite Orders and Final Orders

Final custody orders and pendente lite (temporary) orders are actually very different in that they are analyzed differently under the Family Code. It is important that someone going through a divorce understands and distinguishes between these two types of custody and, thus, better understands the law as it applies to their particular situation.

A pendente lite or temporary custody order is made during the pendency of the dissolution. A Court will apply the “best interests” of the child analysis as enumerated in Family Code, § 3011, in order to determine the best custody arrangement for the minor child. In performing such an analysis and making its temporary custody determination, the Court is predominantly concerned with the “health, safety, and welfare of the child.”

A final custody order is usually made when the dissolution has ended and the couple is divorced. Under Montenegro v. Diaz (2001) 26 Cal.4th 249, the Court must apply a stricter standard when making final custody orders. The test applied is called the “changed circumstances” test. This test is applied as an adjunct to the “best interests” test. In Montenegro, the Court stated that this stricter standard should be applied when a custody order is “final”. The Court reasoned that the “changed circumstances” test should apply this more stringent standard to help preserve continuity and stability in custodial arrangements. Furthermore, only when the “changed circumstances” requirement has been met will the Court move on to the “best interests” analysis in order to make its determination of custody.

When is a Custody Order “Final”?

Under Montenegro, and other appellate decisions, a final custody determination can occur in one of two ways:

1) A stipulated custody order showing a “clear affirmative indication the parties intended such a result.”

2) When the Court makes an order after the issue of custody has been litigated in trial or in a post-judgment modification.

For the first option, an example would be language in a stipulated judgment that unequivocally states the custody order is final under Montenegro v. Diaz. For the second option, an example would be in a judgment based on orders made after trial or an Order to Show Cause regarding a post-judgment modification to custody.

Furthermore, it should be illustrated here that the Court will only apply the “changed circumstances” analysis as it relates to a modification or final determination of custody. If the parent is attempting to modify visitation, the Court will apply the “best interests” analysis. (Enrique M. v. Angelina V., (2004) 121 Cal.4th 1371.)