Motions for Immediate Custody in a Divorce

Married parents of a child automatically share joint legal and physical custody. After filing a summons with notice and complaint in a divorce case, one parent often wants to change the custody arrangement and obtain sole legal or physical custody. This can be done by filing a pendente lite motion before your Supreme Court judge.

What is a Pendente Lite Custody Motion?

Pendente lite is latin for "pending the litigation.” A pendente lite motion seeks immediate and temporary financial relief, attorney fees, custody, exclusive occupancy of the marital residence, and protective orders where acts of harassment or threats of harm can be demonstrated. The motion typically consists of 4 parts:

1. Affidavit of the Parent

2. Order to Show Cause

3. Attorney Affirmation

4. Exhibits

Parent Affidavit in a Pendente Lite Custody Motion

The parent affidavit is a sworn statement by either parent. Included in the affidavit are all the reasons why it is in the best interest of the child for that parent to have sole custody. The affidavit normally contains a history of the parties’ relationship, why it has broken down, and the relief that the parent seeks. Your affidavit is important because it is the court’s first chance to hear your side of the story.

Order to Show Cause

The order to show cause contains all the relief that you are requesting. It is sent to the judge for immediate signature. The judge will sign the form and set a schedule in place for when the parties need to respond. The judge may also grant an immediate change in custody based on your affidavit.

Attorney Affirmation

Daniel Szalkiewicz and Cali Madia are experienced attorneys who have written hundreds of affirmations. An affirmation, like an affidavit, is a sworn statement, but only attorneys can write affirmations. An affirmation submitted in support of a pendente lite custody motion contains all of the legal arguments for why a parent should be granted immediate temporary legal and physical custody. Because each client’s situation is different, each affirmation contains arguments unique to your particular situation.

Exhibits to the Pendente Lite Custody Motion

Exhibits should be included in your motion. These may include medical records, text messages, emails between the parents, or any other documentation that is relevant to why you require interim relief. Affidavits of third parties, including teachers and other witnesses may also be included. In order to file a motion, the parent must also attach a copy of their statement of net worth.

When to File the Pendente Lite Motion?

The pendente lite custody motion can be filed at any time, however it is normally done prior to the first court appearance. By being the first party to file the motion, it allows that parent’s story to come out first. It also immediately places the other parent in a defensive position, having to respond to allegations in your affidavit.

Using Technology for Pendente Lite Custody Motions

How you present your case is important. With your permission, we can use technology to clone your phone to obtain text messages you have exchanged with the other parent. Our firm has seen the inner workings of enough families to know that what you may have grown to accept in your past relationship is not always looked upon with as much tolerance by the court. We can also obtain and present information from third parties to show why it is in your best interest to have custody of your child. In some instances, we can present evidence from tech companies which make your allegations admissible and irrefutable.

Pendente Lite Custody Awards are Important

Pendente Lite Custody awards are important because they last throughout the proceeding. A divorce can last years, and once a schedule is in place, the courts normally keep the agreement and merge it into a final custody order. The custody you receive at the start of the case can be the same you will receive at the end or it may deviate.

A Hearing is Generally Required on a Pendente Lite Custody Order

The general rule is that, while pendente lite relief may be granted without a hearing when sufficient facts are shown by uncontroverted affidavits, it is an error as a matter of law to make an order respecting custody in the pendente lite context based on controverted allegations without having had the benefit of a full hearing.

This means that, where both sides submit conflicting affidavits, the court is required to have a hearing on which party should receive temporary sole physical and legal custody.

Modifying a Pendente Lite Custody Order

Modifications of pendente lite awards are rarely be made by an appellate court and then only under exigent circumstances.  Courts normally state that any perceived inequities in pendente lite award are best remedied by a speedy trial unless there is a change in circumstances warranting the modification.  Because of this, it is always wise that you put your best foot forward in the first instance because obtaining a modification after an interim decision has been made is very difficult.

Parents Can Agree to Pendente Lite Custody Orders

When both parents file motions, the court needs to make an immediate decision on custody. However, at the inception of a case, of course, the court is not intimately familiar with the issues of a particular family and is forced to rely on the papers and a hearing that normally lasts one or two days. There are situations where the parties are better off negotiating a temporary custody order rather than allowing the court to make a ruling. This permits you to control the outcome of your custody situation.

Daniel Szalkiewicz and Cali Madia Will Help You Get Immediate Relief

Our attorneys have written and argued numerous pendente lite motions. Whether you are required to respond to the motion or want to immediately change custody, Daniel Szalkiewicz and Cali Madia are here to help you.