Small bites on visitation

Absent a showing of a “substantial change of circumstances” one is allowed to bring only one motion for temporary relief on a particular issue prior to trial. Typically these motions are brought early in the case–some attorneys almost reflexively file these motions with their initial pleading. However whatever relief the client obtains at the temporary hearing is likely to be the relief the client is going to have until the case goes to trial. When the temporary relief sought is substantially less than the temporary relief obtained, that party’s likelihood of ultimately obtaining that relief is greatly lowered. This party will not get another opportunity to seek that relief until trial, and the opposing party can put that party through litigation, mediation and trial preparation before there is any substantial pressure to offer more relief.

While most family court issues can only justify one motion for temporary relief, visitation is an exception. I sometimes file motions for temporary relief on visitation issues that only seek to set visitation for a limited time period. For example, I might file a “motion to set summer visitation” or a “motion to set Fall semester 2016 visitation.”

There are two circumstances where I find it desirable to file these “small bite” visitation motions. The first is when a client is a fit parent but doesn’t have much of a relationship with the child. This strategy is especially useful in Moore v. Moore type cases, in which my client is the child’s parent and is trying to reclaim custody from a non-parent. The second is when I believe a guardian’s investigation will ultimately strengthen my client’s position on visitation and custody. In the first circumstance I am looking at having my client establish an ability to care for the child before seeking more extensive visitation–or even custody. In the second circumstance, I am relying on a favorable guardian report to obtain more visitation, or even custody, than I believe my client would obtain without a guardian’s investigation and input.

In both these circumstances, filing a typical motion for temporary relief would preclude me from filing a subsequent motion on custody or visitation prior to trial unless I could demonstrate a substantial change of circumstances. By filing a “small bite” motion I don’t need to meet this burden to file another motion. While this isn’t a strategy to employ often, for the circumstances described above it can be a strategy worth considering.

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