Custody Issues before Filing: Positioning Yourself Early

An excerpt from "Dad's Guide to Custody"
By Joseph Cordell

Filing a petition is the step that formally launches a dissolution action and triggers the panoply of laws governing divorce. Among these laws are provisions regarding interim custody of children (i.e., laws that spell out who has what custody rights before a court issues an order). These provisions are intended to prevent ugly scrambles before a court has the opportunity to issue a temporary order, which stays in effect until the final order in the divorce proceeding.

It should be noted, however that some states have statutes that address the prefiling period. For example, Missouri recently passed a law that states the following:

§452.310.3 Upon the filing of the petition in a proceeding for dissolution of marriage or legal separation, each child shall immediately be subject to the jurisdiction of the court in which the proceeding is commenced, unless a proceeding involving allegations of abuse or neglect of the child is pending in juvenile court. Until permitted by order of the court, neither parent shall remove any child from the jurisdiction of the court or from any parent with whom the child has primarily resided for the sixty days immediately preceding the filing of a petition for dissolution of marriage or legal separation.

This clearly restricts the range of options otherwise available before filing. In the absence of such a statute, you can make a decision as to whether you will file with or without children in your care. In some jurisdictions this can be a key decision. Many courts refuse to try a custody dispute twice. As a practical matter, what that means is that the court will not hear a full-blown trial over custody at the temporary hearing and then suffer through what would presumably be the same or similar evidence at the final hearing.

Therefore judges have a tendency (absent a Missouri-style statute to the contrary) to maintain the status quo at the temporary hearing and reserve to the final hearing the various issues relating to custody.

Depending on the waiting period for a trial, the interim custodial arrangement could substantially advance or reduce your chances of victory at the final hearing. Often a case remains pending in excess of 1 year before it actually goes to trial. This affords an opportunity to the interim custodial parent to create a record of exemplary parenting, and indeed for some, it is a necessary period to rehabilitate their image as a parent.

Additionally, the interim parent benefits by creating a somewhat settled status quo going into trial. A judge will likely be substantially influenced by the fact that the child at trial is established in a home, a neighborhood, and a school, assuming, of course, that the child is thriving in that environment.

It should be noted that for dads in particular, there is often a need to prove their ability to be a primary care giver. Moms will often allege that dad did not in fact provide much assistance during the marriage. I have found this to be true, even when both parents' work schedules during the marriage are comparable.

Obviously even in those jurisdictions that permit it, it is not always practical for dad to obtain interim primary care. The reasons are varied: (1) mom may file first, in which case she determines the status quo at the date of filing; (2) there may be no appropriate place for dad to reside with the children, whereas mom is still in the home; and (3) dad's present work schedule in relation to mom's militates against interim primary custody for dad.

Keep in mind that the pendency period provides as much opportunity for loss as for gain. Regardless of the interim custodial arrangement, the parties' conduct during this period will be scrutinized. This will be discussed further below.

If, for logistical or other reasons, you conclude that you cannot obtain interim primary custody, your fallback position must be joint custody (i.e., at least a 50/50 arrangement). Unless the parties can reach an interim agreement as to a 50/50 schedule, which at this stage would be exceptional, the optimum arrangement is for dad to continue living in the marital home throughout the pendency of the case. Furthermore, dad must seize every opportunity for nurturing his children, and he must document everything.

However, a caveat is in order here if dad decides to continue living in the home. Virtually every state has its own version of an adult abuse order. This subject is discussed more fully elsewhere. Suffice it to say that these devices are intended to protect the victims of domestic violence. The unfortunate reality, however, is that they are often used as tools for women in divorce. Although nominally gender neutral, the truth on the ground is that men have a heavier burden than women in trying to get such an order issued.

These legal devices consist of two stages. The first is the ex parte order, which issues on the applicant's word alone without the opposing party being given an opportunity to be heard. If an ex parte order is granted, the defendant is ejected from his home with only his personal effects. He is forbidden to return to his home or anywhere else that his wife may be. He also will be deprived of custody of his children, and his access will be narrowly restricted, if not eliminated entirely. He must live this way until stage two, which is the full order hearing. This hearing typically occurs 10 to 15 days (and sometimes up to 30 days) after the ex parte order is issued.

The full order hearing provides this process with a cloak of constitutionality in that it is the theatrical point at which a citizen is afforded his "due process." However, as any experienced lawyer will tell you, the cold reality is that in the vast majority of courts, the hearing is summary in nature, with a presumption against the defendant. The good legislative intentions and the vigilance of constitutional theory are of little assistance to the accused, as he stands in a crowded courtroom in rural Missouri before a judge determined to err on the side of caution. Despite law to the contrary, the reality is that ex parte orders and full orders of protection are casually granted to women in many, if not most, courtrooms across America.

With that in mind, any dad choosing to reside in the marital home with his wife while a case is pending assumes some risk. Naturally, the degree of risk varies from case to case. I probably do not need to tell you that having an order of protection issued against you does not help your custody case. Furthermore, in many jurisdictions, it is held against you by statute in matters affecting custody.

In summary, when weighing the option of trying to stay in the marital home, you have to perform a balancing act. On the one hand, consider the opportunities it affords you to continue parenting during the pendency of the case (as discussed above). On the other hand, consider the risk associated with that strategy, as well as your accompanying misery index.

If you opt to attempt to stay in the home with your wife, you must walk on eggshells, bite your lip when baited, and refuse to be drawn into any confrontation. This is easier said than done. I cannot count the number of occasions that clients have vowed to me that they would not be drawn into direct conflict and yet have been. Grand strategy dims in the heat of an argument at 1:00 a.m. Saturday morning. I hear about it when I get to the office Monday morning, and immediately, my client is on the defensive.

If you think you are significantly vulnerable to such manipulation and/or fabrication, I recommend that you consider a strategic retreat. It may make more sense to move from the house voluntarily, taking what property you want and yet aggressively continuing to parent.

From a more panoramic perspective, consider whether a delay in filing your petition is to your benefit or detriment. This, of course, assumes that your wife has not already filed and that you do not anticipate her filing soon. In considering a delay in filing, you have to consider your and your wife's relative positions given the criteria discussed earlier. Then, consider whether an additional 6 months, for example, would enable you to improve your relative position as a parent, or on the other hand, whether time is your enemy irrespective of your interim efforts. It is possible that a delay could provide a period during which you are aware of what lies around the corner while your wife is not, which may afford you an opportunity to solidify your position as the primary nurturer, as well as to gather information and evidence. Obviously these opportunities do not exist to the same extent once your wife has been served with a summons. Typically, she will quickly circle the wagons and prepare for battle.