Types of Custody Motions
By Beverly Bird
When parents contest custody, it's usually one of the first things a court will rule on in a divorce -- at least temporarily. Even after custody terms are resolved in an order or decree, they're rarely permanent. As circumstances change, it's often necessary for parents to go back to court to readdress visitation and parenting plan issues.
Pendente Lite Motions
Pendente lite motions ask the court for temporary custody orders until a divorce is final. The phrase is Latin and means "pending the litigation." Pendente lite motions asking for temporary custody may not be successful if the filing parent asks the court to order the children to move. For example, if a parent leaves the family home and then files a motion for custody until the divorce is final, a judge is not likely to force the children to pack up and move out of the family home so they can live with him. Temporary custody often remains with the parent who stays in the marital home. The terms of a pendente custody order can carry over into a final decree or divorce judgment. If the children are doing well with the parent who has pendente lite custody, judges typically won't force them to move after the divorce is final.
Motions for Modification
Parents sometimes find themselves back in court long after their divorce is final. When circumstances change making their existing custody arrangement no longer reasonable, either parent can file a motion asking the court to modify it. Typically, something significant must have changed. For example, a teenager might decide he wants to live with his other parent. Depending on his age and reasons, courts will often allow this. If conditions in the custodial parent's home have deteriorated a great deal since the divorce -- for example, because of a drug or alcohol problem or a new stepparent -- this could warrant a motion for modification.
Parents can file enforcement motions when the other parent blatantly disregards the terms of a custody order or the custody provisions of a divorce decree. This type of motion varies somewhat by state. In some jurisdictions, you can file a motion for an immediate hearing, sometimes called a motion for an order to show cause or a motion for assistance. This typically occurs when one parent is withholding the children from the other and an order is necessary to authorize law enforcement to return the children to the rightful parent. Parents can also file enforcement motions if either parent refuses to honor the ordered visitation schedule.
Parental relocation usually begins as a motion and ends as a trial. Most jurisdictions prohibit a parent from moving out of state with the children without the consent of the other and, in some states, the restriction may be as few as 50 miles away. If a nonresidential parent opposes the move, he can file a motion with the court and ask a judge to block it. If a nonresidential parent refuses to give consent, the custodial parent can file a motion asking the court to allow the move anyway. In both cases, the judge will usually want to hear a great deal of testimony and review extensive evidence to determine whether the move will benefit the children more than it hurts them to be separated from the parent remaining behind.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.