388 Petitions: Basic Information
If the dependency court judge ended your reunification services with your child(ren), your ability to request a change to the judge’s orders will depend on how much time has passed since the case was closed. You may be able to file what is called a 388 petition.
If the judge ended your reunification services (for example, because you did not meet the requirements of your case plan in time), and placed your child in long-term foster care or with a legal guardian, or closed your child’s case, you may be able to file papers in dependency court (called a 388 petition) asking the judge to change the current court order and give you visitation, custody, and/or end a legal guardianship of your child. BUT if several years have passed since your child’s dependency case was closed, it may be too late to go back to dependency court and ask to change the court order. Instead, you can file new papers in family court and ask to change the dependency court order. We briefly explain both processes below.
POSSIBILITY #1: If your reunification services ended recently (in approximately the past year):
You can file a 388 petition in the same juvenile dependency court where your child’s case took place. In your 388 petition, you will need to explain AND prove to the judge (with documents, actions, and evidence) that:
- There has been a significant change in circumstances (your life or how you live) or new evidence in your child’s case since the judge made the current court order (see the Helpful Hint box below for more information and examples of significant changes in circumstances); AND
- Giving you visitation, custody, or ending the guardianship is in your child’s best interest.
Helpful HintSignificant Change in Circumstances
The “change in circumstances” must generally be major and long-term. The judge wants to see that you are committed to the change and won’t go back to your old situation—for example, that you successfully completed your prison or jail sentence; your parole, probation, or community supervision; and/or resolved whatever issues caused CPS and the court to get involved in the first place. Other examples might include: completing an anger management or domestic violence program and taking steps to fix any previous harm you caused; completing a drug rehabilitation program and staying sober for a year or more; and avoiding criminal activity or arrest for several years .
POSSIBILITY #2: If it has been several years since your reunification services ended:
You must go to family court and file papers asking to change the juvenile dependency court order. To be successful, you will have to show:
- A significant change in circumstances (how your life is different and improved) since the juvenile dependency court judge made the current court order, AND
- Giving you custody or visitation would be in your child’s best interest.
NOTE: These are the same things you have to prove for a 388 petition (described immediately above). For more information on Family Court, see PG. 744.
Helpful HintWriting a Dependency Court 388 Petition
You should ask the lawyer who represented you in dependency court (or someone else who is familiar with your case) to help you write the 388 petition, since it must be very detailed. (The court’s Family Law Facilitator may also help explain the 388 petition process.)
Beginning on the next page, you will find the court’s instructions to how to file a 388 Petition and the two court forms you needed
See, e.g., In re A.S., 174 Cal. App. 4th 1511 (2009) (juvenile dependency court lacked jurisdiction to modify previous order 6 years after dependency jurisdiction had been terminated). ↑
Cal. Welf. & Inst. Code §§ 388, 778; telephone call with Eleanor Miller, reentry attorney, Pepperdine Legal Aid Clinic, Jan. 6, 2015. ↑
See, e.g., In re Ernesto R., 230 Cal. App. 4th 219 (2014), reh'g denied (Oct. 17, 2014) (mother's completion of drug treatment program did not establish sufficiently changed circumstances, and mother’s recent sobriety reflected “changing”—not changed—circumstances, where mother had a history of drug relapses, was in the early stages of recovery, and was still addressing a chronic substance abuse problem); In re Marcelo B., 209 Cal. App. 4th 635 (2012) (father's participation in 12-step meetings, completion of substance abuse program, and attendance at parenting classes were not prima facie evidence of change in circumstances, where father had already received extensive treatment for his alcoholism before the relapse that led to the current dependency proceeding); In re C.J.W., 157 Cal. App. 4th 1075 (2007) (parents’ rehabilitation efforts did not establish changed circumstances where both parent had extensive histories of drug use and years of failing to reunify with their other children, and where their efforts at rehabilitation were only three months old at time of petition); see also In re J.C., 226 Cal. App. 4th 503 (2014), review denied (Aug. 13, 2014) (although mother's long term sobriety and renewed interest in parenting classes showed changed circumstances, she did not establish that changing court order to give her custody of child would be in the child's best interests, where child had a loving and stable placement with her maternal aunt, who had cared for child since her birth. The aunt had assumed full parental responsibilities and care for child, and the mother failed to present any evidence that child's best interests in permanency and stability would be furthered by the proposed modification). ↑
Cal. Welf. & Inst. Code § 302(d) (stating that a final custody or visitation order from juvenile dependency court may be modified in family court only if “the court finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child.”). For example, if you have already tried to change custody or visitation through a 388 petition in juvenile dependency court, and the judge denied your petition, then you may go to family court to request changes in custody or visitation. ↑
Telephone call with Eleanor Miller, reentry attorney, Pepperdine Legal Aid Clinic, Jan. 6, 2015; electronic communication from Eleanor Miller, reentry attorney, Pepperdine Legal Aid Clinic, Jan. 9, 2015. ↑