Timing the temporary hearing in your custody modification case

Posted Thursday, May 26th, 2011 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Many family court attorneys reflexively seek a temporary change of custody when filing a lawsuit to change custody.  However, when seeking to change custody on issues that are important but non urgent–such as a child doing poorly in school or a child wishing to live with the non custodial parent–such a request can backfire.  Often evidence that might support changes of custody on these bases isn’t immediately available.  If custody isn’t changed at the temporary hearing, it can be difficult to change custody based on non urgent issues until trial.  In the Charleston, South Carolina area it can take one to two years–sometimes longer–to get a trial date for a multi-day custody case.  Thus, if one is seeking a pendente lite change of custody on claims that are not urgent, timing the motion hearing is thoughtful legal strategy.

Frequently the non custodial parent has a great amount–often half or more–of the summer with the child(ren).  In such circumstances, seeking a pendente lite change of custody based on non urgent issues in late spring or early summer provides minimal benefit even if the motion succeeds.  For non urgent changes of custody in which the non custodial parent has significant summer visitation, it can be excellent strategy to file the lawsuit in mid spring but seek a temporary hearing authorizing only discovery and the appointment of a guardian.  One then has three months to allow the guardian to investigate–thereby having a court-appointed child representative who can represent to the court the child’s custodial preference and confirm whether the child is having problems in school.  One can also employ discovery to depose reluctant witnesses (e.g. school teachers, guidance counselors) who can provide testimony regarding problems the custodial parent is having raising the child.  Then, near the end of summer, one can seek the pendente lite change of custody with a much greater probability of success.

Except for emergency situations, seeking pendente lite changes of custody in late spring or early summer when the non custodial parent already has significant time with the child during summer is a bonehead play.  Use this time for investigation and discovery instead.


3 thoughts on Timing the temporary hearing in your custody modification case

  1. Jeff Schreiber says:

    I’ll second that.

  2. Lawyers overuse and abuse temporary hearing, seeking them in every case whether they are needed or not. Recently I have had a fair degree of success in convincing family court judges that relief granted at a final hearing should not be modified in a subsequent temporary hearing. This might not apply in a true emergency where there was a threat of imminent danger and irreparable harm but it is a good argument in most cases. In many cases I argue that temporary relief is not needed where the parties have survived for a period without the necessity of temporary relief. Judges appreciate arguments that allows them to avoid a decision.

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