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Timing is Everything in Your Child Custody Case Especially When Filing Your Case

child custody court Feb 06, 2018

Timing in your case is everything especially when it comes to deciding when you're going to file it.   This comes up because late last year I had a case with a former client.  She came to me and she was worried because her ex-husband was threatening to actually remove the children from school.  This was because he was in the process of buying a new home that was 30 minutes away from my clients home and from the girl's current school and from his current home.  Because the parties reached an agreement many years ago that father would have the final say when it came to educational decisions, he has the power to remove the kids from school.

And by the way the parties agreement also was that she would have final say when it came to the kids’ medical major decisions.   So I guess they kind of thought it was fair but my client didn't foresee when she entered into that agreement that her ex might actually change the school and move it to a place where made equal parenting time impractical.   Because that's what they have right now and if they have a seven day on seven day off schedule and my clients having to drive 30 plus minutes and rush hour traffic two times a day to get her kids to and from school that makes parenting time pretty hard.   It’s also hard on the kids. 

My client was very worried.  It was the end of the year and she was afraid that X was going to enroll the kids in a new school at the start of the new school year.   Although he hadn't confirmed 100 percent that he was going to do that she was very anxious.   She wanted to file something with the court,  so we filed something kind of preemptively.   We just had court last week and what the judge said to me and my client was that he almost just dismissed our case because he thought it was premature.   He said I cannot take action on something that has not happened yet and I don't care how serious it is.

So that was a little scary, but the good news for my client was that there were other things in the petition that had the judge very concerned about the well-being of the children.  Not only that, but my client’s ex, the father should have been in court as well.  And stated yes I have moved and yes it is my intention to remove the kids from school.   So thank goodness the judge did not dismiss our petition and the judge has set a hearing on the petition and ordered father not to remove the kids from school just yet. 

I have told clients in the past when they come to me and they say I think that mom is going to do XYZ and if mom hasn't done XYZ yet,  then it's really difficult to go to the judge. Because essentially what you're doing is tattling without anything to back it up.   It’s really just a guess that mom is going to do something that's problematic. But this case was also problematic because if father had just moved the children and we had not filed, my guess is that the judge would have said okay the kids are staying put.  Because I'm not moving them again back to their old school.   I've had that happen many times so you're kind of in a catch-22. The point is you really have to think about timing when it comes to filing your case and in most cases thinking that something might happen is not good enough for the judge.  In my case we really got lucky because there were other factors.