2013 California Rules of Court
Rule 5.570. Request to change court order (petition for modification)
(a) Contents of petition (§§ 388, 778)
A petition for modification must be liberally construed in favor of its sufficiency. The petition must be verified and, to the extent known to the petitioner, must contain the following:
(1)
The name of the court to which the petition is addressed;
(2)The title and action number of the original proceeding;
(3)The name and age of the child;
(4)The address of the child, unless confidential under (c);
(5)The name and residence address of the parent or guardian or an adult relative of the child, if appropriate to receive notice following the procedures found in Welfare and Institutions Code sections 291 and 297(c);
(6)The date and general nature of the order sought to be modified;
(7)A concise statement of any change of circumstance or new evidence that requires changing the order or, for requests under section 388(c)(1)(B), a concise statement of the relevant action or inaction of the parent or guardian;
(8)A concise statement of the proposed change of the order;
(9)A statement of the petitioner's relationship or interest in the child, if the application is made by a person other than the child; and
(10)A statement whether or not all parties agree to the proposed change.
(Subd (a) amended effective January 1, 2010; previously amended effective July 1, 2002, January 1, 2007, and January 1, 2009.)
(b) 388 petition
A petition under Welfare and Institutions Code section 388 must be made on form Request to Change Court Order (form JV-180).
(Subd (b) adopted effective January 1, 2007.)
(c) Confidentiality
The addresses and telephone numbers of the person requesting to change the court order, the child, and the child's caregiver may be kept confidential by filing form Confidential Information (Request to Change Court Order) (form JV-182) with form JV-180. Form JV-182 must be kept in the court file under seal, and only the court, the agency, and the child's attorney may have access to this information.
(Subd (c) adopted effective January 1, 2007.)
(d) Denial of hearing
The court may deny the petition ex parte if:
(1)The petition filed under section 388(a) or section 778 fails to state a change of circumstance or new evidence that may require a change of order or termination of jurisdiction or, that the requested modification would promote the best interest of the child.
(2)The petition filed under section 388(b) fails to demonstrate that the requested modification would promote the best interest of the child; or
(3)The petition filed under section 388(c) fails to state facts showing that the parent has failed to visit the child or that the parent has failed to participate regularly and make substantive progress in a court-ordered treatment plan or fails to show that the requested termination of services would promote the best interest of the child.
(Subd (d) amended effective January 1, 2010; adopted as subd (b); previously amended and relettered effective January 1, 2007.)
(e) Grounds for grant of petition (§§ 388, 778)
(1)If the petition filed under section 388(a) or section 778 states a change of circumstance or new evidence and it appears that the best interest of the child may be promoted by the proposed change of order or termination of jurisdiction, the court may grant the petition after following the procedures in (f), (g), and (h) or (i).
(2)If the petition is filed under section 388(b) and it appears that the best interest of the child may be promoted by the proposed recognition of a sibling relationship and other requested orders, the court may grant the petition after following the procedures in (f), (g), and (h).
(3)For a petition filed under section 388(c)(1)(A), the court may terminate reunification services during the time periods described in section 388(c)(1) only if the court finds by a preponderance of evidence that reasonable services have been offered or provided, and, by clear and convincing evidence, that the change of circumstance or new evidence described in the petition satisfies a condition in section 361.5(b) or (e). The court may grant the petition after following the procedures in (f), (g), and (h).
(4)For a petition filed under section 388(c)(1)(B), the court may terminate reunification services during the time periods described in section 388(c)(1) only if the court finds by a preponderance of evidence that reasonable services have been offered or provided, and, by clear and convincing evidence, that action or inaction by the parent or guardian creates a substantial likelihood that reunification will not occur. Such action or inaction includes, but is not limited to, failure to visit the child or failure to participate regularly and make substantive progress in a court-ordered treatment program. In determining whether the parent or guardian has failed to visit the child or to participate regularly or make progress in a court-ordered treatment plan, the court must consider factors including, but not limited to, the parent or guardian's incarceration, institutionalization, or participation in a residential substance abuse treatment program. The court may grant the petition after following the procedures in (f), (g), and (h).
(Subd (e) amended effective January 1, 2010; adopted as subd (c); previously amended and relettered effective January 1, 2007.)
(f) Hearing on petition
If all parties stipulate to the requested modification, the court may order modification without a hearing. If there is no such stipulation and the petition has not been denied ex parte under section (d), the court must order that a hearing on the petition for modification be held within 30 calendar days after the petition is filed.
(Subd (f) amended effective January 1, 2010; adopted as subd (d); previously amended effective July 1, 2002; previously relettered effective January 1, 2007.)
(g) Notice of petition and hearing (§§ 388, 778)
The clerk must cause notice of the hearing to be given to the persons and in the same manner prescribed by rule 5.524. The present custodian of a dependent child and the tribe of a dependent Indian child must be similarly notified.
(Subd (g) amended and relettered effective January 1, 2007; repealed and adopted as subd (e); previously amended effective January 1, 1992, July 1, 1995, July 1, 2000, and July 1, 2002.)
(h) Conduct of hearing (§ 388)
(1)The petitioner requesting the modification under section 388 has the burden of proof.
(A)If the request is for the removal of the child from the child's home, the petitioner must show by clear and convincing evidence that the grounds for removal in section 361(c) exist.
(B)If the request is for removal to a more restrictive level of placement, the petitioner must show by clear and convincing evidence that the change is necessary to protect the physical or emotional well-being of the child.
(C)If the request is for termination of court-ordered reunification services, the petitioner must show by clear and convincing evidence that one of the conditions in section 388(c)(1)(A) or (B) exists and must show by a preponderance of the evidence that reasonable services have been offered or provided.
(D)All other requests require a preponderance of the evidence to show that the child's welfare requires such a modification.
(2)The hearing must be conducted as a disposition hearing under rules 5.690 and 5.695 if:
(A)The request is for removal from the home of the parent or guardian or to a more restrictive level of placement;
(B)The request is for termination of court-ordered reunification services; or
(C)There is a due process right to confront and cross-examine witnesses.
Otherwise, proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court.
(Subd (h) amended effective January 1, 2010; adopted as subd (f); previously amended effective July 1, 2000, July 1, 2002, and January 1, 2003; previously amended and relettered effective January 1, 2007.)
(i) Conduct of hearing (§ 778)
The petitioner requesting the modification under section 778 has the burden of proving by a preponderance of the evidence that the ward's welfare requires the modification. Proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court.
(Subd (i) amended and relettered effective January 1, 2007; adopted as subd (g); previously amended effective July 1, 2002.)
Rule 5.570 amended effective January 1, 2010; adopted as rule 1432 effective January 1, 1991; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 1992, July 1, 1995, July 1, 2000, July 1, 2002, January 1, 2003, and January 1, 2009.