At a time when you were utterly bored out of your mind, you may have wondered why the keys on a keyboard are in such a random order. The answer is inertia. Christopher Latham Sholes patented the QWERTY layout in 1867. Other, more efficient layouts emerged thereafter. But Sholes’ keyboard was already on most of the world’s typewriters, and it stayed there.
This physics principle sometimes applies in the law as well. The wheels of justice are notoriously slow and heavy. Once they start turning a certain way, it’s very difficult to change their direction.
A Bolingbrook divorce or other family law case is a good example. Usually, the judge holds a temporary hearing to establish some ground rules, and enter some interim orders, about fourteen days after a petition is filed. Technically, these orders expire when the judge signs the final order. But a skilled Bolingbrook child custody lawyer is often able to transform the temporary custody order into the final order, using inertia and some other legal principles.
What is a Temporary Custody Order?
Illinois law recently changed on this point. In ye olden days, the court-appointed a managing conservator and a possessory conservator. The child lived with the managing conservator and visited the possessory conservator. Sometimes, these offices had different names, such as a joint managing conservator. But the practical effect was the same.
Now, Illinois has a co-parenting law. There is a presumption that children benefit from meaningful, frequent, and consistent contact with both parents. This presumption applies to:
So, regarding legal custody, a temporary order is usually quite specific. For example, prior to 2016, an order might say that the parents would jointly decide what physician the children would see. This language gives the non-residential parent (formerly the possessory conservator) basically no power. In the event of a 1-1 tie, the residential parent (managing conservator) cast the tie-breaking vote.
Today, this order might be “The children shall see Dr. A.” If either parent wants to change this designation, s/he must file a motion to modify the temporary orders. More on that below.
The co-parenting model also could alter the traditional every other weekend/every other holiday visitation arrangement. This arrangement usually results in about a 70-30 parenting time division. In many cases, that’s not frequent and meaningful contact. To supplement this contact, most Will County judges order unlimited, or at least very liberal, electronic contact. FaceTime and texting cannot substitute for parenting, but they are better than nothing.
Extenuating circumstances, such as verified allegations of domestic abuse, change this picture considerably. The equal access presumption doesn’t apply in such cases.
Be Prepared
People who do their homework usually do well on test days. Similarly, Bolingbrook child custody lawyers who thoroughly prepare for a temporary hearing usually win this hearing. Sometimes, they do not even need to go to court to do so.
Judges usually allow several days for divorce trials. Judges might allot several minutes for a temporary hearing. So, efficiency is key at these hearings. There might be time for maybe one or two witnesses. Attorneys must go through witness testimony and prepare them thoroughly. At the same time, the witness’ testimony must not sound rehearsed or fake. The attorney must also be fully aware of any skeletons in the closet, like a prior domestic violence conviction.
Documentary evidence is important as well. Business records, like report cards and medical records, are relatively easy to admit in court. Photographs, while often compelling, are also time-consuming. It might be better to save pictures for later, unless they are smoking guns, like a parent caught in the act of adultery in front of the children.
This preparation is important, but often ultimately unnecessary. Most civil claims, including most temporary custody order cases, settle out of court. The review-and-sign approach is often effective. An attorney gives a draft order to the other side and asks for approval.
Collect Supporting Evidence
Preparation is usually the key to obtaining a favorable temporary custody order. Supporting evidence is usually the key to transforming the temporary order into a final order.
Some parties make the mistake of asking for too much at the temporary hearing. Since there is considerable time pressure at these hearings, as mentioned, they often get what they ask for. But these requests don’t hold up over the long term.
Domestic violence allegations are a good example. Assume Jennifer and Ben get into a fight. There is some yelling followed by some pushing and shoving. Jennifer goes to a Will County judge and asks for a preliminary restraining order. Based on those facts, she would probably get one. She then uses this preliminary order to obtain a temporary custody order which basically prohibits Ben from seeing the children.
At a subsequent restraining order hearing, Ben tells his side of the story. If his version is credible, Jennifer’s rather shaky “he started it” position might not hold up in court. If that happens, and the judge refuses to extend the restraining order, Jennifer’s custody case not only falls apart. She loses credibility with the divorce judge.
The bottom line is that it’s important to obtain the most favorable terms possible, but not go too far. That’s a fine line that only an experienced Bolingbrook child custody lawyer can identify.
Evidence in a child custody case includes the aforementioned school records and medical records. Before-and-after report cards are often persuasive. If the children’s grades improved when they lived with one parent, that change bolsters that parent’s custody case. Medical records often involve patterns. Even the clumsiest children usually don’t fall down the stairs three or four times in five or six months.
The social study is usually the most important bit of evidence in a temporary custody claim. This study usually isn’t a factor in an initial determination. But it could be a huge factor in a subsequent modification.
Usually, a social worker reviews the paperwork in the case. Then, s/he conducts a couple of home visits and interviews with other witnesses, like doctors and teachers. Finally, the social worker prepares and files a written report. This report includes a recommendation for a time-sharing plan.
An attorney may not write the report, but a lawyer plays an active role in this process. Usually, lawyers have input into the appointment. It’s important for the judge to designate a social worker who has a favorable track record. Attorneys also help clients handle critical home visits. A few subtle changes, like children’s artwork on the refrigerator, could influence the report’s outcome.
The Temporary to Permanent Transition
If everything goes right, the temporary custody order is basically the blueprint for the final custody order. To preserve this momentum, the sooner final settlement negotiations begin, the better. If the parties reach a quick settlement, the judge usually approves it, even if the aforementioned social study is not completed yet.
Some people ask if a premarital agreement aids the settlement process. That’s usually true for financial provisions, such as alimony and property divisions. Most Will County judges uphold most premarital agreements, unless they are blatantly one-sided and/or both spouses did not have independent lawyers throughout the process.
But that’s not true regarding custody orders. In fact, Illinois law does not allow premarital agreements to cover this territory. Custody decisions must be based on the best interests of the children, as opposed to the best interests of the parents.
Successful settlement negotiations usually involve core and peripheral issues. Custody negotiations are a good example. Frequently, one parent is determined to be the residential parent. To make that happen, this parent usually must make some sacrifices. In many cases, the other spouse backs off custody claims if an offer like reduced alimony or a disproportionate property division is on the table.
Reversing Inertia
A lot is riding on the initial temporary custody determination. But if this portion of the family law matter does not end favorably, there’s no reason to give up. It’s still possible to modify the temporary order and obtain more favorable terms. If that happens, the new version, as opposed to the old version, becomes the blueprint for the final orders.
The burden of proof is a little different in temporary order modifications than in final order modifications. Final order alterations usually hinge on changed circumstances. Although circumstances often change quickly, they usually don’t change quickly enough to affect a temporary order. So, these appeals usually rest on new evidence.
The best evidence in a temporary order modification is a favorable social study result. If the social worker sides with the mother, a judge will almost certainly make her the residential parent, even if the existing orders say otherwise. That’s why it is so important to control the social study as much as possible.
Usually, the burden of proof in these situations is a preponderance of the evidence (more likely than not). So, a little evidence usually goes a long way. Another brief procedural point. Associate judges usually oversee temporary orders proceedings. As a result, the proceedings are sometimes a bit less formal.
Count on an Experienced Naperville and Bolingbrook Child Support Attorney
Temporary orders often become final orders in divorce cases. For a free consultation with an experienced Bolingbrook child custody attorney, contact Keller Legal Services at 630-505-1515. We routinely handle matters throughout Chicagoland.
