The risks of rushing into a final order on custody or visitation

Posted Wednesday, December 2nd, 2015 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, Visitation

Most people, at least those who are thoughtful and mature, try to avoid protracted and contentious litigation. This is especially true for custody and visitation cases. The stress and expense of litigation is heightened when the fight is over one’s children–and placating and paying a guardian ad litem only adds to this stress and expense. The desire to resolve custody and visitation quickly and amicably is understandable.

In cases where there is a long-standing and acceptable, or at least tolerable, status quo on custody and visitation, and the litigation is intended merely to make that status quo a legally binding resolution, reaching a quick resolution is good. However often custody/visitation litigation begins with no stable status quo. Often one parent has had a recent life circumstance that leaves that parent’s custodial fitness as issue. Or spouses have separated and routines for division of child care responsibilities that worked when they lived together are no longer workable. Or a father of a born-out-of-wedlock child is trying to develop an independent relationship with that child. In such cases the parties need time to try to determine and reach an acceptable equilibrium.

Often a resolution of custody/visitation that doesn’t merely codify a previous status quo seems workable when entered but quickly develops obvious problems. Often issues arise that the parties had not anticipated or solutions that seemed workable in theory are unworkable in practice. Perhaps one party wanted mid-week visitation but exercises it rarely and this is causing chaos for the other party when that parent wants to make plans for that evening. If the parties rushed into making their custody/visitation agreement a final order, the unhappy party now has to file a new action and demonstrate a substantial change of circumstance to modify that order. It is harder, much harder, to modify an existing final custody/visitation order than to establish a satisfactory order initially.

The general rule in family court is that a quick resolution is ideal. However when one is establishing a new custodial or visitation arrangement, it is wise to enter a temporary order/agreement and wait a few months before negotiating a final resolution.

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