The Importance of Temporary Orders
Some clients fail to realize the importance of winning the initial battle of Temporary Orders in their divorce or child custody action. Temporary Orders are designed to allow the Court to maintain the status quo while the lawsuit is pending. These orders keep the parties from wasting the couple’s assets and harassing each other. More importantly, they dictate conservatorship issues involving the children.
Although a temporary order does not decide who wins what in the divorce action, they have important implications in the final decision. The Judge in Family Court tries most cases, and it is usually the Judge or the associate Judge who issues Temporary Orders. Therefore, the decision made at the hearing gives great insight into the first impression gained by the Judge.
The main issue in both the hearing and the trial is determining what is in the “best interest of the child”. If there are no substantial changes during the pendency of the lawsuit, and the children appear to be well situated, it is a very difficult proposition to influence the Judge that she was wrong in the first place.
This leads many clients to choose a jury trial in order to change conservatorship. A jury trial greatly ratchets up the stress and expense of a child custody battle, and sadly adds stress to the children. It takes a long time to get to a jury trial.
I have had many clients who come in wanting custody of their children, and I spend many hours with these clients preparing them for the realities of the process. The Judge is going to be tuned into making sure that the children’s lives remain as “normal” as possible. She will focus on where the child has been living, going to school and what normal activities he has been enjoying. I haven’t been in front of a Judge yet who doesn’t have a desire to keep the child from being pulled out of his normal surroundings.
Obviously, surroundings are secondary to the threat of physical and emotional harm. There are all kinds of reasons to remove a child from a dangerous situation, and we have been successful in preventing a continuation of this harm. Temporary Orders are the key, however. It is never a good idea to wait for trial to address these issues. It is a difficult proposition to modify temporary orders, since the standard for modification requires proof of a substantial and material change in the circumstances of the child or parties.