Are parents relying too heavily on case law, aka common law?

Yes. Judges often rely on case law—prior judicial decisions interpreting how statutes or constitutional provisions apply in specific situations. Case law becomes influential when a judge’s reasoning in one case is later cited in similar cases. This works well in criminal and civil courts, where many disputes follow predictable patterns and factual similarities.

Family court is different. Family breakdowns rarely mirror one another, and almost every case presents a unique mix of circumstances, behaviors, and evolving child‑related needs. Because the evidentiary standard in family court is low and most evidence is admissible, a judge can usually point to a single differing fact to reject a parent’s attempt to rely on a prior case. The other side can also introduce new evidence that undermines any claimed similarity. Children’s emotional, physical, and developmental needs can shift rapidly, making it even harder to argue that a past case should control the present one. As a result, family‑court judges seldom apply case law when deciding whether a parent keeps or loses legal rights. 

A real example illustrates the problem. In Santa Clara County, Judge Leslie Nichols issued a custody order declaring it a “final judicial decree” under Montenegro v. Diaz. 

Montenegro required the mother to meet the higher “change of circumstances” standard in order to modify it. The mother appealed, arguing that the facts of her case did not meet the Montenegro criteria and that the usual “best interest of the child” standard should apply. The appellate court agreed and issued an “opinion” stating that the trial court should lower the standard of evidence needed for the mother to modify Judge Nichol’s custody order. Judge Nichols retired before doing so.

Many parents report facing the same problem. Family‑court or CPS judges increasingly treat those appellate court “opinions” as optional. Instead of correcting the errors identified by the appellate court, “family” and CPS judges are simply leaving the original order in place and make no changes at all.

Another challenge is timing. By the time an appellate court issues its opinion, months—or even years—may have passed. Family circumstances, children’s needs, and living situations often change significantly during that period. 

As a result, even when an appellate court identifies clear mistakes by the trial court, these judges claim that the situation has evolved too much to apply the appellate court’s guidance. The parent is left with an appellate “opinion” that error has occurred but this “opinion” has little or no practical effect on their actual custody order.

Even the Montenegro precedent itself shows how unstable case law can be in family matters. The appellate court initially held that the “change of circumstances” standard applied, but the California Supreme Court later clarified that the correct standard was “best interest of the child.” in the original Montenegro case. 

Meanwhile, custody shifted repeatedly between the parents. If jury‑trial rights had existed in 2001, the dispute might have resolved far earlier, as neither parent appeared to present significant risk factors.

Gregory Montenegro, now 26, might well ask whether his childhood would have been more stable if both of his parents had been entitled to a jury when the conflict began. Jury trial rights, even when waived, help settle conflicts outside of our nation’s courtrooms.