A contested custody proceeding begins with the filing of a Motion for Temporary Custody with a Complaint for Divorce. “Temporary custody” is legal custody granted to one parent during the pendency of the divorce case. These papers will be delivered by the Sheriff and/or certified mail. Attached to the Temporary Custody Motion will be an affidavit. An affidavit is sworn testimony that is supposed to be based on personal knowledge. The testimony states all of the reasons why the “moving” party (i.e. the one who wants the temporary custody) should be designated as “the temporary legal custodian.” Usually, in custody cases, the personal knowledge requirement is distorted. The affidavit that is attached to the motion that states why the movant should be granted temporary custody, in effect, becomes a document that recites every conceivable form of slander that the “affiant” (the one asking for temporary custody) can think of. The lion share of it will be grossly exaggerated, infinitely inaccurate, or just patently untrue. If you get one of these do not take it too personally (even though you will) because you will get to slander your spouse back in the same fashion when you retain an attorney and file a counter motion for temporary custody. Fortunately, the court prudently places very little or no probative value on this document, especially provisions that are just blatantly lacking in credibility.
At this point the wisest, most loving act is for parents to cooperate for the sake of the children and agree to some form of shared parenting. “Shared Parenting” in a nutshell is a legal mechanism that provides a comprehensive parenting plan that allocates possession and all other parental rights and responsibilities between the parents. Contrary, to what is generally thought; shared parenting often, but not always allocates possession 50/50 between the parents. A shared parenting plan can be designed to address the specifics of any situation. For example, mom works first shift, dad works third- kids spend days with dad and afternoons and nights with mom and split the weekend. This is just one over simplified example; the list of what can be done with shared parenting is endless. A wise child custody attorney will always attempt to lead the client in the Shared Parenting direction. This direction- aside from the extreme exceptions noted below- will ALWAYS be in the minor child’s best interest.
You do not- I repeat- you do not want to force the court to decide who gets temporary custody. The court will be the first to tell this to the parents. Unless one of the parents has been convicted of a child related crime, is in prison, or confined to a psychiatric hospital (along with a few other extreme circumstances- such as leaving a spouse and taking the children to a foreign jurisdiction), the parent awarded temporary custody will, largely, be an educated guess (i.e. coin toss). Most likely, it will be whoever appears to be the primary care taker. The problem is the temporary custody hearing- which is held usually within a few weeks from the filing of the motion- is a very limited hearing. Usually, the only relevant witnesses are the mother and father. There is no guardian ad litem (GAL), which is a neutral person designated by the court to investigate circumstances, the child rearing environment, and other factors and make recommendations for the court to take into consideration in determining the best interest of the children. There are no home studies or psychological or custody evaluations upon which the court can base its decision. The court is basically flying blind and could be wrong.
The court is very limited in its discretionary power regarding temporary child custody. It has to make a decision which designates the “short term” legal custodian of the children until parenting issues are permanently resolved which, by definition, will be by the end of the divorce case (or, sometimes, sooner). The other parent gets visitation. Period. That is the only option if the parents decide to have the court determine the next year or so of their children’s future. Beyond this, a temporary custody hearing is very expensive in attorney time and preparation. A temporary custody hearing could easily cost $5000.00 or more. The outcome means very little in the long run because who gets temporary custody is not a factor the court can legally consider when determining permanent custody. Engaging in a contested temporary custody battle, absent extreme child endangering circumstances, is usually a poor allocation of financial and emotional resources. Contesting (fighting over) permanent custody is even significantly more problematic and debilitating. Preparation for and engaging in a permanent child custody trial is the most expensive legal proceeding that can be undertook by a private individual in a domestic case. Not only will the attorneys cost several thousands of dollars, but there will usually be, to a varying degree, a very high cost for the types of expert evaluations which were mentioned above. A contested permanent custody case can easily cost tens of thousands of dollars.
By far, though, the largest cost will be the emotional and psychological turmoil inflicted upon the lives of the children, as well as that suffered by the parents. I believe the only types of child custody cases that should be contested involve situations so extreme that they will be relatively one sided and easy to determine by the court; Such as situations involving documented child abuse, child endangerment type convictions, diagnosed destructively psychotic behavior or documented severe chemical or alcohol dependency which pose a threat to the safety, health or welfare of the children. Everything else should be resolved between the parents. The children are their children. Nobody- and, especially, not the government (i.e. the court) – is in a better informational position to determine what is in the best interests of their children. It is absolutely critical for both parents to overcome their feelings of anger, resentment and negativity toward one another and negotiate a shared parenting agreement.
The shared parenting agreement can be 50/50 or any other type of possession schedule that works for both parents and the children. The options are wide ranging. A workable solution can be effectuated by wise and compassionate child custody attorneys so long as both parents are truly dedicated to the healthy emotional and psychological development and stability of their children. Divorce is an adult issue, caused by the actions, thoughts and decisions of adults. The children did nothing to cause it but, are always the most affected. It is well established that for optimum psychological and emotional health and development young children should be with each parent to the greatest extent possible. It is selfish, thoughtless and cruel for parents to subject children to a drawn out custody battle without the existence of a clear cut, verifiable, safety or health hazard.
Robert C. Biales