Can a Parent Who Never Appeared in the Divorce Modify a Child Custody Order?
When one parent does not respond to the Petition for divorce or child custody, this is considered a non-appearance by the court and a default judgment can be entered in the absence of that party.
Default Judgments present many concerns because the non-responding party did not have the opportunity to be heard during the proceeding. Since one party did not appear, the resulting default judgment is not “decided on the merits” of the case and can therefore be easily overturned or “set-aside”.
In the recent decision, In re Marriage of Olsen (Cal. App., July 30, 2015, B258767) 2015 WL 4572662, decided by the Second District Court of Appeals on July 30, 2015, the Court held that a parent who did not respond in the initial child custody proceeding has standing to “modify” (i.e. change) that order.
The Court reasoned that when dealing with child custody issues in family court proceedings, the court’s function is fundamentally different because it must first consider the well-being of the children, before the preferences of the parents.
The Court held that during a child’s minority, and throughout the pendency of the proceedings, it retains jurisdiction to make custody orders that are necessary and proper and in the child’s best interest.
Therefore, a parent can modify a child custody order even if they did not appear in the underlying proceeding.