So your divorce has been finalized and your spouse has primary custody of your child. Things are fine at first but then you start noticing changes in your child. When he comes over for visits he is not the sweet boy you used to know, he acts out, talks back, and gets angry easily. You soon discover that your spouse is making no attempt to discipline your son or keep him in line. Your son gets away with nearly everything, and doesn’t even have a bed time nor is he expected to do his homework. His grades are suffering and he’s starting to get in trouble at school. To make matters even worse, your ex often has friends over and they drink and smoke in front of your son. You know this is not a good environment or situation for your child but your spouse is the custodial parent and is legally entitled to custody.
So what can you do?
The good news is there are procedures in place for this type of scenario; the bad news is they can take some time to reverse the standing court order. The first step is filing a Motion to Modify the divorce decree or the custody order. This document is served upon your spouse just like a petition for divorce or custody. Your spouse has 21 days to respond to the motion, at which point you’ll start going down the litigation road. Unfortunately custody/visitation is not likely to change until you and your spouse come to some kind of agreement, or the case goes to trial. If the case ends up going to trial then it could take months if not a year or more to get your child out of that situation. There are two ways to speed up the process, but neither of them is easy.
Temporary Restraining Order
The quickest but most difficult route is a request for injunctive relief and a temporary restraining order. This avenue allows you to get in front of a judge in a matter of days, and request that your child be removed from the situation. However, this recourse is generally reserved for situations wherein a child is in mortal danger. So while it is relatively easy to get a hearing date and time, there is a very high burden of proof that must be met before a judge can do anything about the situation. You can’t just prove that the child is in an unhealthy situation, you have to prove that the child is in imminent danger, and is in physical harm’s way. Unfortunately the situation I described above probably does not meet this criteria.
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.
Another option is filing a Motion for Temporary Orders. These hearings are very typical in divorce and custody proceedings. It allows the court to impose rules that govern the parties until the case is finalized. That way parties can know what their obligations and rights are, and it allows them to function until a final decision is made by the court at trial, or the parties settle the case. In a typical temporary order hearing the judge is just looking for the best interest of the child, even if that means making a custody determination between two great parents. Generally a court will hear a motion for temporary orders about 30 days after the initial pleading is filed, in this case the initial pleading would be the motion to modify.
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