MotionsIn addition to the previously discussed major intersections along the road to divorce, there will likely be various other peripheral legal activities. Usually these take the form of motions, which are simply a device to call the court’s attention to some pressing matter Each of these motions consists of filing a document with the Court and requesting the desired order, then giving proper notice to the opposing party of the motion and hearing date. Usually these matters can be heard fairly promptly, often in less than 15 days. Unless resolved prior to the hearing date, the attorneys (and sometimes their clients, depending on the motion) must make a court appearance. While this motion may be incorporated into the original temporary order, the “victim” may also file a separate motion, usually denominated as a Petition for an Order of Protection. This is a tool routinely used by women prior to filing for divorce. Upon allegation of abuse–a term most judges construe broadly–a judge issues an interim or ex parte order. This order normally awards the ex-spouse immediate and exclusive possession of the house and kids. The displaced and dispossessed dad finds himself out on the street without so much as a hearing. This practice passes constitutional muster because it purportedly gives the dad a prompt hearing, typically within 10-15 days. The eventual “hearing” is in fact usually a summary proceeding. The dad shows up to find that he is one of 15 other guys on the docket that morning. He finds out that the judge set aside only two hours for the entire docket. That allotment assumes an average of 8 minutes per case. Such scheduling is typical. Furthermore, the “hearing” is typically reduced to each spouse standing informally before the judge and briefly stating his/her case. If mom says the right things, she will usually get the order. This is partially attributable to the judge’s survival instincts. Denying this motion in a case where actual abuse occurs may result in unfavorable consequences both for the victim and the judge. So most judges choose “to play it safe.”
Upon finding of abuse at the hearing, the judge typically issues a full order of protection (sometimes called a plenum or permanent order) which will remain in effect from 6 months to 2 years depending on your state statute. While most clients would like to have their spouses undergo the humiliating court-ordered physical or mental examination, few such examinations are actually ordered. A party desiring to have one ordered must jump over a high legal hurdle to persuade a court to subject a spouse to such involuntary intrusions. While the stringency may vary from one jurisdiction to another, you usually need a smoking gun — substantial evidence that your spouse is either physically or mentally unfit to parent. This motion is necessary when one spouse does not produce the answers or documents requested by the other within the time provided. Alternatively, the cantankerous spouse may object to providing such information, claiming that it is privileged or demanded with intent to harass. If the court finds for the moving party, it has the power to strike (throw out) the wrongdoer’s pleadings and/or award the moving party its attorney’s fees. In the real world, if this is the first offense and the opposing attorney offers some minimally plausible excuse, the court will simply give the non-complying party a new deadline to produce the documents in question and will not impose sanctions. Many clients are naturally angered to have paid an attorney to argue the motion while “she does what she pleases without penalty.” However, when the shoe is on the other foot, the practice seems imminently fair. A party to a divorce lawsuit may file this motion if the opponent has deliberately violated a previous order of the Court. Usually such motions allege a violation of a temporary order. For example, a mom may allege that she was denied court-ordered visitation. A dad may allege that the mom is encumbering assets in violation of a specific provision forbidding such acts in the temporary order.
This online custody guide is adapted with permission from “Civil War: A Dad’s Guide to Custody” (266 pages, softcover) – available in our online store. |
