As a general rule, divorcing spouses must wait until the final judgment in order to file an appeal Custody orders, however, are an exception to this rule since they are normally issued at the beginning of the divorce process. While these orders are temporary, they are legally binding for the duration of the trial. Failure to abide by its terms will cause you to lose credibility with the court, thereby hurting your chances when it comes to the final custody agreement. Depending on your actions, you may also face criminal charges ranging from contempt of court to parental kidnapping.
On the other hand, there are situations in which a custody order can be changed in order to protect the child from immediate and irreparable harm. The words "immediate" and "irreparable" are somewhat subjective, but they generally refer to extreme circumstances that place the child in danger. One of the most common examples in modern day divorce hearings is drug use, especially the abuse of painkillers and heroin. If a parent, for example, had been caught purchasing drugs with his child in the car, or was using drugs in the presence of the child, that could serve as a basis for an emergent order, also known as an emergency motion. If the child was injured, or been involved in a dangerous event such as a DUI-related car accident, the court will typically allow the other parent to take the child within 24 hours. The parent will be granted temporary sole custody, but a final determination will not be made until a formal hearing, which is typically held several weeks later.
If you believe that there is a serious threat to your child's safety or well-being while under the care of your spouse, you can ask to have the matter examined by a judge through an Order to Show Cause (OSC). It is highly recommended that work with an attorney who has extensive trial experience in the New Jersey family courts. Although you are allowed to file on your own, it can be overwhelming to put together an OSC when you are worried about your child's safety. Keep in mind that an OSC requires several components, including a verified complaint, supporting evidence and a memorandum of law.
The memorandum of law is especially difficult to draft on your own, since it requires you to state the legal basis for your complaint, and why the court should supersede an existing court order in order to grant your request. Your attorney will also make sure that your spouse is served with a copy of the OSC in a timely manner. Failure to serve these documents in the manner and deadline ordered by the court will may cause your case to be dismissed. For immediate assistance with filing an OSC, please contact the family law attorneys of Villani & DeLuca, P.C. Our attorneys can also assist you with custody-related issues such as child support, visitation, and relocating during and after divorce.