04 Jan Will the custody agreement remain valid if I drop the divorce?
According to a Todd Spodek, an NYC divorce attorney, a divorce occurs every 36 seconds in the United States. That translates to 876,000 divorces a year, actions that will to some extent touch the lives of half the nation’s 73 million children under 18. “Child custody” is thus more than a catchphrase in today’s family law climate. It involves a dizzying number of issues as judges work to arrive at the most equitable solutions for the parents and legal guardians.
The website Findlaw (family.findlaw.com) says that child custody, child and spousal support, possession of the family car and possession of the marital home must be decided quickly, long before the formal divorce or legal separation hearings. Temporary orders serve to address these issues.
“Having temporary child custody orders in effect before your divorce is finalized can prevent a lot of headaches,” adds a piece in the blog Women’s Divorce (womensdivorce.com). “Not only can it help avoid misunderstandings with the other parent; it can also give you some recourse if the other parent doesn’t comply with an agreed-upon custody arrangement.
“A temporary child custody order can be established as part of your divorce petition, a restraining order (if your state permits it) or as a totally separate court order. Like the name implies, temporary child custody is not a permanent custody determination. Final custody will be determined in either the divorce proceedings or during a custody trial.”
An eventual permanent custody order, however, will outline where and when the parents will share legal and physical custody of the children. “Permanent custody” isn’t necessarily a term of art, because a court can always change a custody arrangement, as in the event the petitioner sees fit to drop the action.
Spouses frequently choose reconciliation after their divorce commences. In that event, the court must enter a dismissal to terminate a pending divorce action. A copy of the dismissal is provided to all affected parties. The dismissal process and the court paperwork vary based on state law and the circumstances involved.
But the answer to the question as asked — “Will the custody agreement remain valid if I drop the divorce?” — may depend on the spouse’s response. If the spouse does not respond to the request to drop the case, the divorce will not proceed. However, J. Goldstein writes in the July 10, 2014 issue of the website Divorce Saloon (divorcesaloon.com) that should the spouse respond with counterclaims, “then the case may proceed on your spouse’s answer and counterclaims alone; and so even if you withdrew your petition for divorce, the divorce case will and can still go forward against your wishes.”
By extension, then, even a change of heart on the divorce may not alter a judge’s custody decision. Timing, it appears, is everything — the current Women’s Divorce states that custody decisions do apply in the event of a dropped case if the custody agreement has been entered into by court order. And child custody findings have often taken on a life of their own within those orders as parents and jurists cobble their agreements together, issuing orders before the divorce is finalized.
“Increasingly,” Goldstein writes, “custody battles are becoming a thing of the past because more and more jurisdictions are requiring parents to have parenting plans and to share custody of their children.” In these determinations, parents participate equally in decisions about the child’s upbringing and welfare and split time equally in the child’s day-to-day care, including a parent’s right to have the child live with him or her.
That’s why a special measure of due diligence on child custody is warranted. A dropped divorce case may or may not alter a court’s findings depending on the spouse’s reply — in either case, as always, the interests of the child must be paramount.