Temporary Motions (Part 3)

However, a caveat is in order here if you decide to continue living in the home. Virtually every state has its own version of an adult abuse order. These are devices intended to protect victims of domestic violence. The unfortunate reality, however, is that they are often used as tools by women in divorce. While nominally gender-neutral, the truth is that men have a heavier burden than women do 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 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 10-15 days, and sometimes up to 30 days, after an 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 at risk varies from case to case. Having an order of protection issued against you will almost certainly hurt your case for custody; in fact, in many jurisdictions it is held against you by statute.

In summary, when weighing the option of staying in the marital home, you must perform a balancing test. On the one hand, consider the opportunities it affords you to continue parenting while the case is pending. On the other hand, consider the risk associated with that strategy, as well as your accompanying misery and frustration.

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. Many men cannot help but be drawn into confrontations with their ex-spouses. Grand strategy dims in the heat of argument at 1:00 a.m. on Saturday morning. If you think you are significantly vulnerable to such manipulation and/or fabrication, I recommend that you consider a strategic retreat. Rather than being forced out of the house by a court order, it may make more sense to move from the house voluntarily, taking what property you want, and to continue to parent during the time you are allocated.

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.