Most clients seeking to modify a prior visitation or custody final order want that order modified immediately. Most attorneys still reflexively file motions for temporary relief to modify custody or visitation along with the initial complaint. The 2025 rule changes regarding the procedure for motions for temporary relief, made it harder to win such motions by ambush. Absent actual danger to the child(ren), I discourage clients from seeking temporary modification of custody or visitation orders until discovery has been conducted and a guardian has had time to investigate.
My reasoning is that it is typically taking at least 18 months to go from initial filing to standby trial dates for a multi-day custody case and sometimes taking over two years to get a day-certain trial. Meanwhile, the status quo after the motion for temporary relief greatly dictates litigation strategy and leverage.
Get custody changed or the other party’s visitation reduced at the motion for temporary relief, and one’s client has a lot of leverage in settlement. The new status quo is less favorable to the opposing party than the prior status quo and that party will typically be amenable to a settlement that is more favorable than the new status quo but less favorable than the prior status quo.
However, fail to get custody or the other party’s visitation reduced at the motion for temporary relief, and the other party has all the leverage. Absent some unusual circumstance that allows one’s client to seek a second motion for temporary relief, one almost certainly cannot achieve litigation goals without a trial—a trial that is months if not years in the future and is likely to cost tens of thousands of dollars. Meanwhile, every month that the children approach age eighteen without successful results being achieved is another month where there is no fruit from any ultimately beneficial result.
While actual danger to the child(ren) certainly merits seeking an immediate modification of custody or visitation, most modification cases benefit from the fact gathering that discovery and a guardian can provide. I have seen many strong, but not overwhelming, modification cases derail because custody or visitation was not modified at the temporary hearing and the client did not have the budget or stomach for a multi-day trial that might lead to similar disappointing results. The reflex to file a motion to modify custody or visitation with the initial complaint is a bad one.
5 thoughts on Absent actual danger, do not seek temporary relief to modify visitation or custody with the initial complaint
I strongly believe that orders founded on an agreement or by a judge after a trial where there was an opportunity to present and cross-examine witnesses should not be modified at a temporary hearing based on affidavits not subject to cross-examination. Only in the rare case threatening actual danger of irreparable harm should temporary modifications be permitted on the strength of affidavits. This is a compelling argument that is successful with many judges.
I think changing visitation/custody on a temporary basis is less problematic once the parties have had an opportunity to conduct discovery and a guardian has had the opportunity to investigation and report. Otherwise, a defendant can simply use delay and expense to avoid justice. That said, I do think changing custody or visitation on a temporary basis based merely on a prima facie showing from affidavits alone is very problematic and should rarely happen.
What if the child has been abandoned by the custodial party to the non-custodial party? The non custodial party is paying child support for said child while providing 100% of the child’s living expenses effectively doubling the cost to the non-custodial parent. Does it fall under the courts definition of “actual danger”?
I believe that some (possibly many) of the temporary motions that I see are a direct result of an attorney who is not strong enough to tell a client “no” or “not now” rather than simply deferring to a client’s wish to get in front of a judge quickly. You have a good explanation of why to not ask for temporary hearings in this blog. I hope others read it and take heed.
I strongly believe that orders founded on an agreement or by a judge after a trial where there was an opportunity to present and cross-examine witnesses should not be modified at a temporary hearing based on affidavits not subject to cross-examination. Only in the rare case threatening actual danger of irreparable harm should temporary modifications be permitted on the strength of affidavits. This is a compelling argument that is successful with many judges.
I think changing visitation/custody on a temporary basis is less problematic once the parties have had an opportunity to conduct discovery and a guardian has had the opportunity to investigation and report. Otherwise, a defendant can simply use delay and expense to avoid justice. That said, I do think changing custody or visitation on a temporary basis based merely on a prima facie showing from affidavits alone is very problematic and should rarely happen.
What if the child has been abandoned by the custodial party to the non-custodial party? The non custodial party is paying child support for said child while providing 100% of the child’s living expenses effectively doubling the cost to the non-custodial parent. Does it fall under the courts definition of “actual danger”?
Alyssa: No threat of irreparable harm. An adequate remedy at law is available. No temporary relief.
I believe that some (possibly many) of the temporary motions that I see are a direct result of an attorney who is not strong enough to tell a client “no” or “not now” rather than simply deferring to a client’s wish to get in front of a judge quickly. You have a good explanation of why to not ask for temporary hearings in this blog. I hope others read it and take heed.