Child custody during the divorce process
Can the court order temporary child custody during the divorce process?
A common process typically associated with the initial stages of the divorce process: You or your spouse files a divorce petition with the court. The other spouse (known as the “respondent”) responds to the petition. Then, in an ideal situation, you’ll both agree on an arrangement covering custody and visitation for the kids. However, let’s assume that you’re unable to work through this step with your spouse, and an agreement cannot reached. At that point, one of you will file a set of documents collectively referred to as a, “Request for Order”. In broad terms, you’re requesting an order from the court – in this case, a temporary child custody order.
Included in the request are some judicial council forms and a declaration where you state the relevant facts for the judge. The judge will need to completely understand your declaration in order to grasp your position as it relates to the custody. Composing a clear and complete declaration as part of your request for temporary child custody orders is vital toward obtaining favorable results. In that regard, the guidance of a family law attorney experienced in child custody can be a valuable resource. Over the years, we have seen numerous declarations drafted by parents and very few actually touch the important points in an effective manner.
Once the request is complete, two separate dates will be set. The first is for mediation to take place, which is a requirement in child custody cases that occur in California. The next date is reserved for a court hearing, where temporary custody and visitation orders will be set.
There are 2 key points to keep in mind when dealing with this type of scenario:
Putting forth effort in working with your spouse to reach an agreement without court intervention
Majority of family law judges do not favor formal hearings on child custody, and strongly encourage the parents and their attorneys to work it out on their own. With this request being temporary in nature, the time spent could be better used toward the actual divorce and arriving at final custody orders. There will be exceptions to this, and they involve circumstances of serious abuse or danger when in the custody of one parent. This can center around domestic violence, substance abuse, or physical abuse – anything that puts the child in immediate danger or affects their welfare. Unless you have that exception or similar circumstance involved in your case, be prepared to inform the judge you made a reasonable and valid effort to settle the child custody case. This doesn’t mean that you have to settle on an agreement that isn’t fair, as you don’t want to sacrifice your children’s best interest just to avoid the court. Your children are the priority and if the matter has to escalate to that point, put them first.
A temporary child custody order will be short term in nature
The other factor to keep in mind includes a judge’s focus during a temporary child custody hearing. As mentioned, these orders are temporary and the court will not be concerned with long term plans associated with the kids. The judge’s goal will be implementing reasonable orders that solely cater to the children’s best interest until the custody issues can be addressed further at the time of trial. Now, this doesn’t mean the judge will make impulsive or irrational decisions. The children’s best interest is still the top priority, but the court will strive to knock out the larger issues saving the smaller details for the future judgment or trial.
Remember, you want what is best for your children while simultaneously protecting your rights as a parent. If you’re unable to reach agreement with your spouse and would like the guidance of one of our experienced family law attorneys, feel free to contact us for a free consultation.