Divorce Lawyer: Ex Parte Order for Interim Sole Custody

If you are in a joint custody arrangement and you feel that your ex-spouse is abusing your child, then you need to speak to a divorce lawyer or child custody attorney immediately.  This is so that they can gather the facts and evidence, then determine whether there is a sufficient showing of abuse to proceed to court.  Certainly, the court will look to what is in the best interest of the child.  And if the court finds your ex-spouse is abusing your child, there is a high chance you will prevail in obtaining an ex-parte order for interim sole custody.

Perhaps it can be helpful to go through a recent case from the view of a divorce lawyer.  In a case referred to as Young v. Young, the trial court ruled that the former husband could not modify his protective order to seek sole custody of his child and to terminate his child support.  The trial court found that the husband and wife had a tumultuous relationship.  Such acrimony caused their child to have ADHD.  Additionally, the trial court found that the defendant harassed his former wife, her co-workers, and medical professionals who have as a patient, his minor child.

The wife sought to relocate with her child to Washington – one of the toughest challenges for a divorce lawyer can be relocation.  However, the trial court denied the request asserting that the limited income of the father would prevent him from frequently visiting his child in Washington.  Nonetheless, the trial court issued a protective order in favor of the wife.  The protective prevented the former husband from contacting her in any way shape or form including electronic and third party sources.  Additionally, the protective order prevented the former husband from going within 100 yards of his former wife’s residence.

Shortly thereafter, the former husband filed his own protective order against his former wife.  (Because protective orders are typically ex-parte, a divorce lawyer usually does not usually file a demand against the original.)  In his petition, he asserted that his ex-wife attempted to run him over with a car.  As a result, the hearing officer issued a protective order in the former husband’s favor.  The conditions were the same as the conditions set forth in the protective order issued in favor of his ex-wife.  However, the hearing officer did not award him sole custody of his child nor did he terminate his child support payments.  The former husband appealed.

A divorce lawyer typically is aware that in order to be granted relief in Louisiana, you must show facts that support such a ruling.  In this case, the appellate court cited the pertinent Revised Statute, which permits the issuance of a protective order.  The appellate court noted that in order for a court to award ex parte relief, particularly an award of temporary sole custody, the party must show that the child is has been and is currently being abused.  The purpose of a protective order in the context of domestic abuse is to end the abusive offense.  The appellate court reviewed the former husband’s claim and determined he did not make a showing that his child was abused.  The instances to which he points did not constitute abuse in the court’s eyes.  As such, the appellate court affirmed the lower court’s decision.  The former husband was denied sole custody and denied the termination of his child support payments.

What should a divorce lawyer or someone else take away from this case?  When seeking an interim sole custody award pursuant to an ex parte order, the petitioner must assert the facts and circumstances concerning the alleged abuse.  Simply stating that the child has been abused is not enough to prove that the child has been abused.  As such, a court will not grant relief on such mere assertions.