July 9, 2014
By Don Hubin, PhD, Chair, Executive Committee, National Parents Organization of Ohio

An Ohio National Parents Organization member recently wrote to me to let me know what responses he’d received from the Ohio legislators he’d written to. He was writing to advocate for a presumption of true shared parenting during temporary orders. “True shared parenting” means joint legal decision-making authority (legal custody) and substantially equal parenting time (physical custody). One of our esteemed legislators blew the issue off, informing this man that (as the man reported to me), “temporary orders are simply temporary, and that they are not the final orders that the magistrate can rule to set what is in the best interest of the child.”

Well, of course, temporary orders are temporary. Hard to argue with that. But it’s a terrible mistake to conclude that they don’t matter much. They are vitally important.

In 1999, I published my “Parental Rights and Due Process,” which argued that doctrine explicitly endorsed by the U.S. Supreme Court implied that parents had a fundamental constitutional right to shared parenting. In that paper, I focused on shared parenting during temporary orders because those orders are based on almost no evidence; they provide almost nothing in the way of substantive due process. I anticipated that some people would say: “What’s the big deal? They’re only temporary orders.”

Here (from my 1999 paper) is why temporary orders are a big deal.

[T]he seriousness of the situation [is not] diminished significantly by the fact that we are concerned here, for the most part, with the temporary suspension of rights pendente lite—during the pendency of the legal action. (Indeed, as shall become clear, the timing of the temporary custody decision makes it of the utmost importance to preserving the parent/child relationship.) As those involved in the practice of domestic law know, ‘pendente lite’ may refer to a period of many months, often years and sometimes many years. With the deprivation of rights with respect to children, even more so than with deprivation of other rights, “justice delayed is justice denied.” The brief years of childhood are unrecoverable. To be denied the parenting relationship with one’s children for any significant period of time is to be permanently and irrevocably denied parenting the children during that precious period of their lives. And, it should be remembered, even when the litigation period does not seem especially long by adult standards, it will seem very long to a child deprived of meaningful contact and a parenting relationship with one of his or her parents. Furthermore, even in the absence of a legal supposition to this effect, temporary orders establish a status quo with respect to the custody of the children with which courts are (sometimes not unreasonably) loath to interfere unless there is positive evidence of adverse effect on the children.

Finally, and very importantly, even the temporary suspension of parental rights appears likely to so disrupt the parenting relationship as to permanently impair it. Citing Judith Wallerstein and Joan Kelly (1980), Edward Kruk says:

There is a critical period that strongly influences the nature of postdivorce father-child relationships: the transition period from the point of . . . [separation] to approximately six months to one year after, a time when multiple stresses and adjustments impinge on all members of the divorcing family, legal processes have their greatest impact, and access patterns are established and consolidated.

Far from being a decision that courts can take lightly because it is “just temporary,” the determination of custody pendente lite is one of the most serious decisions made in cases of divorce precisely because it determines the quality of the parent/child relationship during “this critical period.” It deserves more care and attention than it receives.

There is a further tragic irony in our current practice. Since it is typically (probably in excess of 90% of the time) mothers who receive temporary custody, fathers are generally denied parental rights and, depending on the decisions of the custodial mother, the parent/child relationship these rights serve to protect. Kruk’s research shows, tragically, that it is those fathers who are most involved with their children and with the day-to-day running of the household who are especially likely to be forced out of the lives of their children by the “access patterns . . . established and consolidated” pendente lite.

[F]athers describing themselves as having been relatively highly involved with and attached to their children and sharing in family work tasks during the marriage were more likely to lose contact with their children after divorce, whereas those previously on the periphery of their children’s lives were more likely to remain in contact. . . . Now-disengaged fathers consistently scored highest on all measures of predivorce involvement, attachment, and influence.

The period of divorce litigation is a time when it is most important not to disrupt the parent/child relationship more than necessary. It is period during which there should be, if anything, heightened scrutiny of the demand that one parent be deprived of parental rights. The fact that it is merely “temporary custody” may lead us to think too lightly of these decisions. But the research shows that this temporary period comes at a time when the maintenance of a real parenting relationship between the child and both parents is absolutely crucial. “Temporary custody” is not a matter to be taken lightly in divorce proceedings. Much is at stake.

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