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American Bar Association - Defending Liberty, Pursuing Justice

June 2008

Vol. 4, No. 3

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Family Law

  • She’s Gone–Baby’s Back
    By Brian Hermanson


She’s Gone–Baby’s Back

As you may know, more and more states are placing notice requirements on parents that are going through divorce. State law now orders the parents not to move or in any way change the normal routine of the children of the family during the divorce proceedings. In some states there are automatic temporary orders that are served with the petition that tell the parties that not only are they not to move, but they are not to change the day care, school, and numerous other activities during the pendancy of the divorce. These automatic temporary orders stay in full force and effect until the parties agree in writing to the contrary, until the court specifically changes the requirement, or until the divorce is finalized. Some of these restrictions may even continue long after the divorce is finalized. If your client does not get custody of the minor child or children at the temporary order hearing, then these requirements may offer your client the opportunity to have a second bite of the apple.

In a recent case of mine, the parties were separating as the divorce was filed. The automatic temporary order was put in place when it was served with the divorce petition, and then an additional temporary order was entered by the court setting up a shared parenting plan with each party having alternate weeks with the minor child. My client, the father, was pleased that he would have significant time with his son. Then everything changed.

The father received a call at work one day from his soon to be ex-wife and was told that she had packed up her stuff and was moving with their child from Oklahoma to Houston. Exchanges would have to take place at a halfway point some five hours away from the father’s home instead of three minutes away. In a panic my client called me.

No agreement was ever made to approve the moving of the child from northern Oklahoma to southern Texas. No agreement was made to change day care or the visitation arrangement. The thought of driving five hours one way each weekend was daunting. The trial date would be months away on the final divorce hearing, and by then who knows what the situation would be. Indeed, the status quo at the time of the divorce trial would be with the child spending a significant amount of time in southern Texas.

The best avenue was to file a request with the court showing that the mother had violated the automatic temporary order and moved out of the jurisdiction, making the shared parenting plan unworkable. It could have been a dangerous move, in that the court could have left the child solely with the mother. But logic would tell you that the mother created this problem by her move, and she did it in such a manner that was in defiance of the orders of the court and in violation of the rights of the father. If someone should lose out on this change of circumstances, logic says it should be the person who created the change in violation of the current approved arrangement.

What we did in this case was to file an application for indirect civil contempt and a motion to modify the temporary order. At the hearing, the court, after hearing the evidence from all parties, found that the shared parenting could not work over such a long distance. The judge also found that the person who created the change of condition left the jurisdiction in violation of the standing orders in the case. The court then held that temporary custody should be awarded to the father with reasonable out-of-state visitation rights to the mother. If the mother would move back to town so that shared parenting could work, then the previous temporary order would go back into effect. But lacking such a move, the temporary custody would stay with the father.

A good decision? Yes. Both parties admitted that each parent was a good care provider for the child. The mother could regain her position under the shared parenting plan by moving back to where the child could have had access to both parents on a regular basis. The father had violated no court orders and had done nothing to create the problem. One would wonder what the court would have done if the mother had requested permission of the court prior to her move to Houston. While I think the court would have not looked favorably on the move, the mother would have known up front the dangers of her move and could have made her decision based upon all the facts.

Brian T. Hermanson is general practitioner at the Hermanson Law Office in Ponca City, Oklahoma. He can be reached at

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