During the initial phase of a divorce case involving children, the court issues a temporary child custody order, according to "The Complete Divorce Handbook: A Practical Guide" by Brette McWhorter Sember. If the judge granted your spouse temporary custody of your children, you may wonder what recourse is available to you. Many people erroneously believe that they can appeal a temporary custody order to a higher state court. In fact, that is not the case. Because a temporary restraining is not a final order of the court, the only course you can take is to appeal to the trial judge in your case to reconsider the ruling, according to Sember.
Obtain a motion to reconsider form from the clerk of the court that issued the temporary custody order.
Complete the motion to reconsider, using the guidelines provided by the court clerk.
State specifically how you feel the judge erred in granting temporary custody to your spouse. For example, explain that the court was mistaken in concluding that your spouse maintained a proper residence for your children.
Insert a statement to the effect that the temporary restraining order is not in the best interests of the children. According to the law of all U.S. jurisdictions, temporary and long-term custody must be in the best interests of the children, notes Cornell University Law School.
Sign the motion to reconsider. Make copies for your records and to mail or deliver to the other parent.
File the original motion to reconsider with the court clerk.
Request a hearing date from either the court clerk or the administrative assistant to the judge presiding over your case.
Attend the hearing. Present your case to the judge, including any witnesses or documents that support your position in opposition to the temporary custody order.
Due to the complex nature of seeking reconsideration of a temporary custody order, consider hiring an attorney to represent your interests. The American Bar Association maintains resources to assist you in finding a qualified attorney for your case.
- "The Complete Divorce Handbook: A Practical Guide"; Brette McWhorter Sember; 2009
- Cornell University Law School: Child Custody Overview
- "Child Custody A to Z"; Guy J. White; 2005
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