So what can you do?
Temporary Restraining Order
An experience I had illustrates how difficult it can be to get a temporary restraining order. I had a client that had sole custody of his son. The mother had regular visitation but after one of her visits she refused to return the child. Instead she took him to a “cabin” in the mountains that had no running water or electricity. Apparently she had lived in this cabin as a child, and her family often stayed there. The child did not attend school while he was staying with his mother at the cabin, and was miles and miles away from civilization or any kind of emergency care should something happen. Remember, the mom was not only holding the child there, but she was doing it in violation of a court order.
I filed a Motion for a Temporary Restraining Order on behalf of the father and was granted a hearing. At the hearing the judge determined that while the mother was in clear violation of the custody order, and the child was in a very unhealthy and questionable situation, there was no imminent harm or danger and therefore the temporary restraining order was denied. The judge stated, from the bench, that his hands were tied due to the criteria he was obligated to follow, but he intended to fix the situation as soon as the father brought the mother’s actions properly before the court through an order to show cause, a hearing that would take 3 or 4 weeks to schedule. This scenario illustrates how difficult it can be to get a temporary restraining order.
However, in a modification proceeding there is a special criteria that must be met. A court will not alter the current arrangement in a modification proceeding unless there is clear and convincing evidence that the situation is one that requires immediate remedy. You don’t have to prove imminent danger like you do in for a temporary restraining order, but you do have to convince the judge that the child is in an unhealthy situation and should be removed in order to ensure his emotional/mental/physical health and stability.
It is likely that the above scenario I created would be enough to warrant temporary orders as long as you can prove that your ex is not properly caring for your son, which can be a feat in and of itself. If you can’t convince the court at the temporary order hearing, then you’ll likely have to wait until a decision is made at trial or the case is settled by mutual agreement before any changes take place.
If you need a modification of your current custody order or divorce decree, contact Pearson Law Firm for a free consultation with an experienced Utah custody attorney. Your attorney can help you determine the best route to go. Call today! 801-888-0991