Most clients seeking to modify a prior visitation or custody final order want that order modified immediately. Most attorneys still reflexively file motions for temporary relief to modify custody or visitation along with the initial complaint. The 2025 rule changes regarding the procedure for motions for temporary relief, made it harder to win such motions by ambush. Absent actual danger to the child(ren), I discourage clients from seeking temporary modification of custody or visitation orders until discovery has been conducted and a guardian has had time to investigate.
My reasoning is that it is typically taking at least 18 months to go from initial filing to standby trial dates for a multi-day custody case and sometimes taking over two years to get a day-certain trial. Meanwhile, the status quo after the motion for temporary relief greatly dictates litigation strategy and leverage.
Get custody changed or the other party’s visitation reduced at the motion for temporary relief, and one’s client has a lot of leverage in settlement. The new status quo is less favorable to the opposing party than the prior status quo and that party will typically be amenable to a settlement that is more favorable than the new status quo but less favorable than the prior status quo.
However, fail to get custody or the other party’s visitation reduced at the motion for temporary relief, and the other party has all the leverage. Absent some unusual circumstance that allows one’s client to seek a second motion for temporary relief, one almost certainly cannot achieve litigation goals without a trial—a trial that is months if not years in the future and is likely to cost tens of thousands of dollars. Meanwhile, every month that the children approach age eighteen without successful results being achieved is another month where there is no fruit from any ultimately beneficial result.
While actual danger to the child(ren) certainly merits seeking an immediate modification of custody or visitation, most modification cases benefit from the fact gathering that discovery and a guardian can provide. I have seen many strong, but not overwhelming, modification cases derail because custody or visitation was not modified at the temporary hearing and the client did not have the budget or stomach for a multi-day trial that might lead to similar disappointing results. The reflex to file a motion to modify custody or visitation with the initial complaint is a bad one.
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