Is A Family Court Temporary Hearing Right For You?
The Temporary Hearing in Family Court is often described as a “trial by ambush”, but this is not necessarily a bad thing. A proper understanding of the purpose of a Temporary Hearing will help you make a good decision.
A Family Law Attorney has many options when beginning a new Family Law case, and only one of which involves filing a lawsuit. However, once a lawsuit is filed, the Attorney can request a Temporary Hearing.
The Temporary Hearing must be scheduled within 4 weeks and the only evidence permitted to be considered by the Family Court are affidavits. The hearing is limited to 15 minutes, affidavits must be limited to a total of 8 pages and argument of Counsel, witness testimony, and additional supporting documents are all subject to the approval of the Court. In fact, none of this information is required to be disclosed to the other party and their attorney until the time of the Temporary Hearing.
Put these rules in the context of a Family Court case involving a 20 year marriage with adolescent children, significant assets, and spousal support issues and you can see why it is called a “trial by ambush”. Even so, our courts have attempted to blunt the effect of a bad ruling by noting that “ a temporary order of the family court is without prejudice to the rights of the parties. Such orders are, by definition, temporary—they neither decide any issue with finality nor affect a substantial…” Terry v. Terry
Not a lot of help when a difficult ruling can be in place for well over one year while the parties litigate the matter in Family Court. In our practice we will generally only request a Temporary Hearing in two instances.
The first instance is when there are disputed support issues. For example, if we believe that alimony is, or is not, an issue in the case, and we are unable to resolve the issue in negotiations, we will generally need a Family Court Judge to hear the issue and make an initial “Prima Facia” ruling based on the affidavits. A Prima Facia ruling means that the Family Court Judge looks at the evidence as it appears on first sight. In other words, if the affidavits appear credible and the issues clearly set out by the attorneys, the judge will grant the request for relief and issue a temporary order subject to revision at the trial when more evidence is presented.
The second occasion involves parenting plans. Sometimes parties who are recently separated can not agree on a reasonable parenting plan. Again, the evidence is confined to affidavits and a judge will make a temporary ruling based upon what she/ he sees in that 15 minute hearing.
When a family has enough cash and income to keep them afloat for several months, and they have agreed upon a parenting plan, it is often our practice to avoid the time and expense of a Temporary Hearing and simply work to exchange necessary information and get the matter resolved by either negotiation and/ or mediation.
A Temporary Hearing is expensive, and unless there are burning issues that need to be resolved, should be avoided at all costs. The limited amount of information provided to the Judge, along with the total lack of any ability to challenge it, can lead to erroneous rulings that can easily color the remainder of the case.