By Richard A. Marcus, Esq.


In a family law case involving children, the parties should always try to work out custody arrangements without involving the court. If they are unable to do so, one of the parties will eventually file papers asking the court to resolve the dispute. The Judge will then issue a temporary custody order, called a “pendente lite” order, which remains in effect until changed by the court or until a final judgment is entered at the end of the case.

During the pendency of the case, the court is given discretion to make whatever temporary custody order "seems necessary or proper." These decisions are subject to uniform statutory standards rooted in the child's best interests, with the primary concern being the child's health, safety and welfare. The court may also issue a temporary order determining the right of a party to visit a minor child "on the conditions the court determines.” Like this sounds, the court has wide discretion to make such an order.

The court's primary concern is to assure the child's health, safety and welfare; and so long as consistent with the safety of the child and family, to assure the child frequent and continuing contact with both parents. The days of custody going to the mom automatically are long gone. And, short of domestic abuse or inability to care for the child properly, joint custody awards are extremely prevalent.

It must be remembered that the temporary order issued by the judge is just that, temporary. At the end of the case, a final judgment will be entered regarding the custody of the children. What happens if you want to modify the custody arrangement after that judgment?

The person seeking to modify custody has the burden of showing a significant change of circumstances so affecting the child that modification is essential to the child's welfare. As one would imagine, this is a very heavy burden to meet.

Without this showing, the modification would be denying the child the benefits of a stable home environment and thus would not be in his or her best interest. Thus, the law may be stated as follows: A paramount goal exists of preserving the need for continuity and stability in custody arrangements, unless some significant change in circumstances indicates a different arrangement would be in the child's best interest.

The person seeking the modification must show how circumstances have changed and why the custody modification would be in the child's best interests. Without such a showing, the court cannot properly modify a final judgment containing custody orders.