custody decision

Temporary Custody should not automatically = Permanent Custody

Often in divorce court, a temporary ruling on the issue of custody means there is a near certainty the same result will follow the final trial. But this is not what the law suggests or even allows as a presumption. Nonetheless, many divorcing parties and/or their lawyers focus heavily on temporary custody so that they may be in a much better position to achieve an award of custody on a final basis (I know, I hate the terminology like “achieve” or “winning” when we are talking about the lives of children). However, a recent Georgia case has made it very clear that a trial judge may not simply “do the same thing, based on what he or she already heard at the temporary hearing”. The case is Pace v. Pace, in the Supreme Court of Georgia and has been given the number No. S10F0843 (Oct. 4, 2010).

The trial judge may rely on evidence adduced at the temporary hearing, with advance notice to all, presumably so that the parties will know what evidence the court has in front of it even before the final trial begins. But the court may do so only after “notifying the parties of its intent to do so [rely on evidence from the temporary hearing]”.

One thing the Pace decision did not clarify, is what amount of weight the evidence from the temporary hearing should be given: “Neither the statutory provisions nor the court rules governing the conduct of child custody proceedings addresses the extent to which a trial court may rely on evidence from the temporary hearing in reaching its determination on permanent custody.” The court did however point out how limted temporary hearings can be and that final trials offer the parties a much better ability to present evidence.

Another thing the Pace case did not emphasize, is that even if the evidence was strongly in favor of a custody award to one party at the temporary hearing, things change. Child custody and visitation decisions must always be made with an eye toward what is going on presently. There are many parents who have done bad things. This goes for parents who are not in a divorce or custody struggle. But the real question should be what is in the child’s best interests right now and going forward. Yes the past is important, but if there were poor decisions made years ago that have not been repeated, we should closely examine how best to ensure a good future for the child or children instead of punishing a parent who has made mistakes in the past. There is no question that custody decisions are difficult. No one can predict the future. But if we, and importantly the judges, can know the very present, then we are more likely to formulate plans for our children that will work now, and hopefully into the future.