I regularly hear from potential clients who want to seek or modify custody when they are happy with the actual status quo on custodial time. These potential clients either do not have a custody order or are living under a custody order that grants them less time or control than they are actually exercising. They typically have two goals. First, formalize and obtain a court order ratifying the current status quo. Second, obtain child support or reduce their child support obligation.
My typical counsel is to discourage them from taking any action until the other parent attempts to upend that satisfactory status quo. While counterintuitive, there are good reasons for providing this counsel—much of which stems from there being only 216 months of a child’s infancy. Filing a contested custody or visitation case has the strong potential of upsetting a desirable status quo. Better to let it ride for more of those 216 months.
When there is no custody order it is almost always a father seeking custody or visitation from a mother to whom he is not married. In that circumstance, the mother has custody until a court orders otherwise.[i] File a custody action when the status quo is agreeable to the father and mother will likely reduce his time until he can get to a temporary hearing. Absent unfitness on the mother’s part, I have yet to see the court grant such fathers more time than they were already having. The typical best-case scenario is that, after much stress and litigation expense, father regains that status quo. A more typical scenario is father gets less time than he was enjoying before there was any court order—plus he is now paying court ordered child support.
When there is a custody order, and the parent with increased time files a modification action to ratify the current status quo, again the other parent is likely to revert to the court ordered level of visitation until the temporary hearing takes place. Again, it is highly unlikely that the court increases that parent’s time above the current status quo. Here it is quite possible that the family court refuses to modify the prior order—especially on a temporary basis. The expected rewards of starting litigation to affirm the status quo are outweighed by the stress and expense of litigation and the possibility of doing worse than that status quo.
Moreover, the longer the status quo deviates favorably from the actual court order, the greater the chance that the family court will affirm that new status quo in contested litigation. That’s why I encourage such clients to wait for the other party to upend the satisfactory status quo before filing any modification action.
In addition to affirming the better status quo, a second reason folks in this situation often want to file a modification case is to modify child support in his or her favor, with the expectation that more custodial time will either decrease their support obligation or increase the other side’s support obligation. That’s a legitimate goal. However, my custody cases are often approaching $100,000 in fees and costs for a week-long trial. A lot of child support needs to be gained in an ever decreasing 216 month time period for that to be cost effective.
No parent wants to be told to forgo a favorable child support modification and allow the more favorable custody status quo to remain unaffirmed. But it is often the best advice.
[i] I consider it malpractice for unwed mother’s to file for custody when they physically have the child in their possession. It still happens.
