Friday, April 2, 2010

What Divorce Law is Doing to Marriage Part 27

More from the words of Jed Abraham

The call will come to you at work. Your lawyer’s secretary hasn’t read the decision, and your lawyer is in conference. He hasn’t read it yet either. He’ll see you tomorrow. Tomorrow, after the longest night.

Poker-faced, your lawyer’s secretary will hand you a copy of the decision. She’ll tell you to read it carefully before you go in to meet with your lawyer. But you’ll know you won’t have to read it to know what it says.


This matter has come before me upon Wife’s Petition for Divorce. Pursuant to the Divorce Act, I have bifurcated the matter, hearing arguments relating to the custody of the parties’ minor children first, and reserving the remaining issues-distribution of property, alimony and child support-pending resolution of the custody issue.

The Facts
A review of the facts, as revealed by the pleadings and the evidence, follows. In her Petition for Divorce, Wife alleges an irretrievable breakdown of the parties’ marriage. She requests sole custody of the parties’ marriage, and it is thus deemed admitted by Husband. However, Husband does deny that an award of sole custody to Wife would be in the minor children’s best interest, and he requests an award of custody to himself and Wife jointly, or in the alternative, an award of custody solely to himself.

Wife also filed a Petition under the Domestic Violence Act for an Emergency Ex-Parte Order of Protection against Husband. Specifically, Wife alleged that Husband (i) harassed her, (ii) sexually abused the minor children, and (iii) that he poses a continuing risk of violence to Wife and the children.

Upon examination under oath by the court, the court found Wife’s averments credible and sufficient to indicate abuse by Husband, and it granted Wife’s Emergency Ex-Parte Order. Pursuant to the Emergency Order, Wife was awarded exclusive possession of the parties’ marital residence and temporary physical care and possession of the minor children. Husband was ordered by the court to stay away from the marital residence, Wife’s place of employment, the minor children’s school during their presence there, and from any other place where the Husband might know Wife or the minor children to be present. The Emergency Ex-Parte Order was for 21 days, during which time Husband was to be served with summons and notice of hearing on whether the Emergency Ex-Parte Order should be made into a Permanent Order.

During the 21 day period of Emergency Ex-Parte Order, Wife entered into an agreement with Husband. Pursuant to this agreement, Husband (i) vacated the marital residence, (ii) acknowledged that Wife was to have temporary legal and physical custody of the minor children, (iii) incurred the obligation to pay Wife child support by monthly wage assignment of his income at the guideline rate, and (iv) was accorded visitation with the minor children for five hours every other Sunday afternoon; and Wife moved to withdraw her allegations of abuse and to vacate the Emergency Ex-Parte Order of Protection without prejudice to her to refile her petition at some future time. This agreement was presented to the court and incorporated in an Agreed Order of the court which vacated the Emergency Ex-Parte Order of Protection. The court at no time conducted an adversarial domestic violence hearing or made a comprehensive evidentiary finding of abuse by Husband of Wife or the minor children.

More on your custody hearing on next summary.