Child custody is often one of the most contentious and emotionally draining issues in divorce proceedings. Because of this, it can remain unresolved completely until well after the final judgment is entered. This article will explain how to get immediate custody by filing an Ex Parte order with the court, thereby saving money, time and grief until the dust settles.
Act fast to protect the most important asset of your marriage: your children. Filing immediately for temporary custody through an Ex Parte custody order will show the court that you are seriously concerned about your children's welfare. You don't need much proof of abuse at this state because it's a temporary order that will hold until the final judgment of divorce, which can take months or years depending on many factors. Simple allegations may suffice for the time being and you can work to substantiate them later. The first step is to decide which jurisdiction to file your claim in. Typically, this is the state and county which your marital home is located, but not always. A good website to check local rules and regulations is DivorceSource.com (see Resources).
Once you have determined in which jurisdiction you will file, you need to obtain an Ex Parte legal template to complete and file with the court. Assuming you are handling your case Pro Per (without an attorney), having a custody mandate from the court will buy you time so that you can get your ducks in a row if you plan to file for divorce. Family law is a very complicated procedure with all types of legal and financial ramifications and is not recommended without an attorney. However, you may convince your estranged spouse to go directly into mediation (which a court may order anyhow) and save time, money and trouble for both of you. Having custody of the children is a great leverage factor in convincing your opponent to accept mediation. Remember---the gloves readily come off in a divorce situation. Many websites sell downloadable legal templates for a nominal. Just Google "legal forms."
Fill out the Ex Parte order template completely and accurately. It is extremely important that this form is complete and accurate. Do not expect any special consideration from the court regarding missing information or inaccuracies just because you are passionate about the welfare of your children. Most family law judges are acutely aware of the emotional trauma that occur during family break-ups, but they are more concerned about their own image and the standing legalities of their entries and judgments. In reality, they are trying to protect all parties involved by doggedly following procedures and legal requirements. Also, since this may be your first appearance before the judge who may ultimately decide all the important factors in your particular situation, you want to create the impression that you are competent and not just wasting the court's time.
Once you have filed your Ex Parte order and, assuming it is accepted and you are granted the custody that you desire, do not gloat over your victory and rub it into your spouse's face. Resist the temptation at all costs, especially if you plan to continue proceeding Pro Per. You need to remain as emotionally detached as possible. An Ex Parte child custody order in your favor is a huge bargaining chip to force your spouse to the table if they are at all concerned about being with the children. Remain level-headed and calm because it is the just the beginning of what may turn out to be a long and fretful ordeal, especially for the children involved. If the dividing of assets is a paramount concern, you can use those to reach a settlement in the case and agree to maintain the Status Quo of child custody unless there are other extenuating circumstances. If your spouse decides to challenge the Ex Parte order (a costly endeavor) at least you will be the plaintiff and a strong offense is usually the best defense.
Whatever your next step is after you have gained custody, it is always advisable to have legal advice at the ready. Pre Paid Legal Services, is a nationwide referral system of attorneys and providers that will offer you advice at anytime with any step of the process as well as all other legal matters in your life (see Resources). For less that $20 a month (in 2009), you can join them and have peace of mind knowing that a lawyer is just a phone call away.
Stay cool. Stay focused and, most of all, stay prepared.