Temporary Motions (Part 2)

Depending upon 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 one year before it actually goes to trial. This affords an opportunity to the interim custodial parent to create a record of exemplary parenting. This period may also be necessary for you to rehabilitate your image as a parent. Additionally the interim parent benefits by creating a somewhat settled family situation 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.

It should be noted that for dads in particular there is often a need to prove their ability to be a primary caregiver. Moms will often allege that dad did not provide much child-rearing assistance during the marriage. However, even in those jurisdictions that permit it, it is not always practical for a dad to obtain interim primary care. The reasons are varied: 1) mom may file first, in which case temporary custody is determined at the time of filing, (2) there may be no appropriate place for dad to reside with the children, while mom is still in the home, and 3) dad's present work schedule vis-a-vis mom's militates against interim primary with dad. Keep in mind that the pendency period (the time during which the case is pending) provides as much opportunity for loss as for gain.

Should you continue to reside in the marital home?

If for logistical or other reasons you conclude that you cannot obtain interim primary custody, your fall back position must be joint physical custody. However, parties are rarely able to agree on a temporary joint custodial arrangement at this stage in the process. Most often, a court's temporary custodial arrangement gives the dad non-custodial visitation rights. Therefore, in order to obtain the best possible custodial arrangement at the final hearing, the optimum arrangement is for you to continue living in the marital home while the case is pending and seize and properly document every opportunity to nurture your children.

This online custody guide is adapted with permission from "Civil War: A Dad's Guide to Custody" (266 pages, softcover) - available in our online store.