Appealing a Pendente Lite Order

Whether the court intends it or not, pendente lite (temporary) orders for custody or visitation can have explosive consequences. Can you appeal a pendente lite order? The Alabama Court of Civil Appeals dealt with this question in P.B. v. P.C., Case No. 2050280 (Ala. Civ. App. June 30, 2006). The answer is no, but you can file a writ of mandamus.

The Marshall County Juvenile Court entered a pendente lite order in a dependency and custody dispute between the child’s father and her maternal grandmother (the mother had died). The maternal grandmother had reported to DHR that the child had told her that her father was sexually abusing her. An emergency room physician found no penetration of the child, and a DHR caseworker did not believe the child had been sexually abused.

The father cut off contact with the maternal grandmother. The maternal grandmother filed for grandparent visitation rights and later amended her claim to allege dependency. The Marshall County Juvenile Court issued a pendente lite order on December 23, 2005 citing evidence that the child had been sexually abused but stating that it was not clear who the perpetrator was. The pendente lite order called for an investigation of the sexual abuse allegations, home studies of the father and the maternal grandmother, and one weekend per month visitation for the maternal grandmother. The father appealed.

The appeals court acknowledged that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu. See, e.g., Pace v. Utilities Bd. of Foley, 752 So. 2d 510, 511 (Ala. Civ. App. 1999).” However, it said, this was not a final judgment, and therefore the appeal was premature.

This appeal is from a nonfinal judgment. The underlying issues involved in this case have not been adjudicated by the juvenile court. The proper method of review of pendente lite orders is by a petition for the writ of mandamus. B.W.C. v. State Dep’t of Human Res., 582 So. 2d 579, 580 (Ala. Civ. App. 1991). The father has not sought a writ of mandamus in this case. Thus, this appeal must be dismissed. See B.W.C., 582 So. 2d at 580 (dismissing an appeal from a pendente lite award of child custody); see also S.S. v. T.R.A., 716 So. 2d 719, 720 (Ala. Civ. App. 1998) (stating that, because the father did not seek a writ of mandamus, his appeal must be dismissed).

Lee’s Note: Because the writ of mandamus is shrouded in mystery for most of us, I will devote some time to it tomorrow.

31 comments to Appealing a Pendente Lite Order

  • terri taylor

    hello i recieved a pendente lite order april 12th 2005. the courts
    dropped our case due to lack of activity. my ex decided he doesnt
    wamt to pay child support. since we havent reached a settlement is that order still in effect even though the court dropped the case. i feel a little rushed
    to get something done i cant live without the chid support. thank you
    for your time .TERRi

  • No. When a case is dismissed the pendente lite order dies with it. If it’s important to you that an order be in place, you’ll need to file and ask for it.

  • Joannie

    How long can a pendente lite last? I know of one that was filed in Alabama August 2006 and the case has never been heard.

  • A Pendente Lite order will stay in effect until the divorce is effective, the case is dismissed, or the judge changes the order.

  • Gena

    I have been caring for my 2 grandsons for almost a year they have been living with me and the state placed them in my home while they have been trying to get my daughter on abuse and neglect charges.Now the father has had his lawyer file for a extended stay he had seen the little one 2 times in his life and he is 2 going on 3 and my other grand son has just turned 4 the state cancelled my daycare for the boys and they allowed him to take them out of state for this extended stay he did not abide by the states rules didnt even allow me to talk to my oldest grandson on his birthday they are all telling me i dont need to go to court and I nor the boys have ever met their ad-litom and when i go to court they dont let me in,the last court date the attorney explained that no matter what she is guilty of neglect even if she didnt abuse the children so she aggread to pleading guilty to neglect and they dropped the abuse charges the state has been telling her the whole time that she wont get the kids back till she admits it ,next month is the ajudication and we finally got the court to order there dad to bring them back for visitation we went a month with out seeing them , know i get to keep the boys for a week and we have to let them go back to there dads they have lived with me almost there hole life and there not the same boys that left the youngest was completly potty trained when he left with his dad he only met 2 times and know he dont even try to go to the bathroom ,Iam very concerned with there well being is there anything i can do , Thanks so much for your time sorry its like a book but i really havnt had anyone i could trust to talk to about this since it started a year ago September. I feel as the state is just tired of paying there day care and want to wash there hands of it and be done i dont feel anyone is looking out for the best interist of the children. Once again thank you for your time Gena

  • Mandy

    My husband has temporary custody of his kids. His ex was suppose to take the kids back after getting her life straighten out. However, on the day she was suppose to come get the children she never showed. We called her and she said she was going to let the kids live with us until she got a house. (Which she had told us she got married and was in the process of getting a house. Nothing but lies) However, we have had them for two years so she could get a degree, job, and house. The temp. order was extended and we are going to court for full custody since we have the kids 100% of the time. She doesn’t keep up her visits, she doesn’t pay child support, and she doesn’t have a place to live. However, she is prepared to fight us in court without a lawyer. What do judges do when the mother claims she wants the kids but doesn’t have it all together? We would love to keep them with us but I know most judges would prefer kids be with their mother.

  • Mom may have had the inside track on custody originally, but she has given up any privileged position she enjoyed by giving up custody of her children, and particularly her decision to extend that time on such short notice. Print out the list of custody factors the court is to use in deciding questions of child custody between parents, at http://www.divorceinfo.com/alcustodyfactors.htm . Make a separate sheet for each factor.

    Go through each factor and state as clearly and simply as you can the argument Mom would make and the argument Dad would make, then list the evidence (testimony, photographs, attendance records, grade reports, etc.) that you would expect each party to present. When you sit down with your lawyer armed with this set of “strike sheets,” you will impress the lawyer. You will also make the lawyer’s preparation and presentation of your case much simpler and perhaps less expensive as well.

    You’ll find more about the use of strike sheets here: http://www.divorceinfo.com/childcustodyfight.htm .

  • Joannie

    How do you get a prejudiced judge off the bench in Alabama? You have one there who has repeatedly shown gender bias in ordering custody.

  • You make a complaint about the judge to the Alabama Judicial Inquiry Commission. Here’s their web site: http://www.alalinc.net/jic/.

  • Kristen Fee

    Do paternal grandparents have any rights to visitation if the father has not paid child support? My parents have raised my niece, until my mom reported that the mothers’s boyfriend had molested her. Since that time she has not allowed any of us to see my niece. My parents have wanted to file for grandparents rights but my brother has not been paying his child support and owes 9000.00. The child is 7 years old. Can you tell me what rights the grandparents have? Also does my brother have any rights since he owes so much back child support? Thank You

  • The right to visit with a child is always and absolutely independent of the duty to pay child support, just as the duty to pay child support is always and absolutely independent of the right to receive child support. The sooner the grandparents file after their time with the child has been cut off, the more likely I believe it to be that the court would be inclined to order grandparent visitation.

  • melissa

    i had a pendente lite order issued back in 2005 for child support and custody og my child. it is now 3 years later and her fatjher is incarcerated for nonpayment of child support. he is now arguing paternity of our child in attempts to drop child support and get released from jail. does an order like this still stand. he also acknowledges verbally in this order that he is the father.

  • To my knowledge, there’s no prohibition against Dad’s raising the issue of paternity now. It may be deplorable, but he has the right.

  • lookingforanswers

    I have a pendete lite order which states that my ex is to sign irs forms granting me the right to claim our kids on my taxes. the order states that the form should give me the right for all future years. My ex has not signed the wavier and is claiming the kids. The final decree makes not mention of taxes. so my ex says that I don’t get to claim the kids.

  • If the case is still active and the judge hasn’t changed the pendente lite order, it still has the force of law. However, if the children live with the other parent, the order does not give you the right by itself to claim the exemption; you’ll still need to get the other parent to sign Form 8332. To do that, follow the suggestions here: http://www.divorceinfo.com/enforcement.htm.

  • J

    My former spouse recently got a tax bill for unclaimed income subsequent to the Court ordered Pendente Lite support I paid during our separation. The PL order was clearly stated Unallocated and no stipulation as for who had the tax obligation on that PL money. I was advised to deduct on my tax return; re:Kean vs IRS. I asked at the time and throughout our proceeding. Can the court/judge re-issue Now any order changing the PL order from four years ago to alleviate her tax obligation?
    Who’s problem is this? And another question: can or will the IRS excuse or abate penalties and interest for the time they take to determine whether Pendente Lite payments were appropriately claimed or deducted on a tax return?

  • Interesting question – that I don’t feel comfortable answering without understanding all the facts of your case and researching the cases. At this point, any relief granted to your Ex would probably expose you to liability for incorrectly deducting the payment, so I would think you would want to stay out of this if possible.

  • J

    The tax laws used the term written legal instrument, which a PL order is, correct? Then Kean vs the IRS determined that PL support can be considered alimony when it is unallocated. That is how the PL order was written at that time. How am I exposed for any liability when I was advised and followed the laws which are on the books in the IRS tax laws and in the supreme court case law. I had no control of those funds and asked early on and up until the final divorce day who was responsible for taxes on that money. My former spouses counsel said I was which may turn out to be wrong. It does not seem fair or proper if they can change a PL order 4 years later.

  • kate

    Hello, I have beeen in Supreme court for several years now. My children are early teens and have alleged abuse by their father. I have witnessed some abuse but was not present for much of it. Letters written by neighbors to the forensic psychiatrist went un-noticed (witnessing hair pulling and hitting by their father). CPS cases–unfounded. I have pendente Lite custody for now and am being sued by the fatherfor my educational degree (1/2 finished when we married) and for parental alienation–I understand the penalty for this outrageous term is no child support. What do you make of all of this. The judge is a new one now—the previous judge seemed much more informed on the law. The father called the children (after 2 months of not speaking to them—there was supervised visits but the kids refused to interact). The kids don’t want to speak to him or see him.

  • Nathan

    My ex and I have a PL in place that allowed me exclusive use of the marital property. I was able to maintain the property for the past two years, but recently she has gone to Social Services claiming that she has not been receiving child support for the past year, even though I had been paying her in cash or paying for services such as daycare and medical bills. In April my wages were attached to collect back support and 60% of my monthly income is being given to child support even though the case is in the appeals process. This leaves me with a monthly net income of $1200, with a mortgage of $1600! I made my ex well aware that I would not be able to pay the mortgage and asked if she would help or move back in. She refused to do either, and in fact picked up and moved with my kids out of state! The house is now going into foreclosure, and she is trying to find me in violation of the PL and drag me into court for a show cause hearing. Any suggestions on what my rights are with this?

  • Angela

    My husband and I have a Pendente Lite order, signed September 6, 2008, that states his “friend” is not to be in the presence of our son. Our divorce hearing was on November 6th, and at that time a standard out-of-state visitation scheduled stating that “neither party was to have overnight guests of the opposite sex, unless by blood or marriage, should stay overnight while the minor child is present” was agreed to by both my husband and myself. To this date, the judge has not ordered a final decree of divorce. I allowed my husband to come visit with our son, who told me his father was bringing his “friend”, on an unscheduled weekend and reminded him that he was not to bring “her”. He wrote back an email that he would be alone. After dropping my son with him, he informed me that “she” was there for the weekend and there was nothing I could do about it. What can I do? I believe he is in contempt of court, is he?

  • Your husband has decided that the judge will not enforce this provision. He may be right. I know I wouldn’t if I were the judge. Maybe your judge will view this differently, though. The best way I know is to ask your attorney how your judge feels about these “no hussy” clauses.

  • Lynn

    I have two teenage daughters (16 and 15) – Their father and I divorced over 10 years ago, I received custody. In 2006, my oldest daughter, a somewhat defiant teenage, left my home in 2006 after she got in trouble for not coming straight home from school. In the midst of confronting her for breaking rules she called her dad to come get her (mostly to avoid being grounded). I thought she would go over to her dads cool down and be back the next day. She didn’t. After getting a huge bit of freedom and living life rule free, she wouldn’t come home. At the time I was a single mother struggling and couldn’t afford an attorney so I had no choice but to let her stay. I tried all avenues. I called the police and filed reports, but their hands were tied because it is a civil manner. The school allowed my daughter to “run away” by inhibiting her and helping her avoid me. They allowed my exhusband to check her out of school even though it was on record I was her custodial parent. And even once after I removed her from an extra cirricular activiity, they allowed her to continue on it. The school even went as far as helping her leave in the afternoons in a manner to avoid me seeing her. In 2007, after a fight with her father she came back home. I soon found out my daughter was participating in activities that were harmful. She stayed home for about 2 months. During the two months, trying to protect her from the activities she had started due to lack of supervision, I had to involve the police in several occassions when she was violent or was trying to run away. After two months, she packed her bag one day for school, her dad picked her up and she did not come back. I decided to remove her from the “crowd” which was enabling her bad behavior, I would move 45 minutes away to my fiances home (we had planned on marrying 2 months later than the time which I moved). Once I spoke to my youngest daughter about moving and why, my exhusband coached my youngest daughter of running away as well. That day I went to pick her up from school, I waited 45 minutes on her and when she did not come to the car I called the police. The school enabled my child to run to her dads and he coached her on how. A few weeks later (I had hired an attorney and was in the process of filing in my new county) I was served with a pendete lite. The hearing was to be held in two days. In court, my daughter lied. My attorney, who I have sinced replaced, did not argue my case or present any evidence which could disprove all she said. My ex husband was granted a temporary order of custody. It has been 10 months now. The order did not give any guidelines as to visitation. The only guidelines were for my daughters to go into counseling and no child support to be paid. My ex husband denies my daughters medical care, they are running wild without supervision, among numerous other issues. My question is, it a writ of mandamus my best route? Or should I file a pendete lite? I am at a loss. And I honestly feel my daughters lives are at steak. Please help.

  • Silvia Ortiz

    My husband’s ex claimed the 2 kids and she was only to claim one that is what the decree of the divorce said…we went to do our income tax and like we normally do we claimed one of the kids but found out that she had claimed the boy so we decided to claim the daughter instead and when we went back we found out that she claimed both of them…they told us to take the decree divorce form and that the IRS would take care of it…I am just worried if its going to take a long time and if we are going to have to go to court to fix this problem….my husband ex never had done this till this year is she going to be in trouble with the IRS? the 2 kids live with us all the time and we pay for everything…car, insurances, school, food etc….and my husband still pays her child support on time all the time and I just feel that we shouldn’t pay nothing anymore since the kids are leaving with us…what can we do in this case?

    Thank you for your time.

    Thannk you,

  • I gather the children live with Mom. If so, your husband needs a signed Form 8332 from Mom, and as far as I know, the IRS won’t “take care of it” without that form. If Mom refuses to sign the form and deliver it to Dad, he needs to take the steps outlined here to enforce the decree: http://www.divorceinfo.com/enforcement.htm .

  • Confused

    Hello,
    Filed for child support (pendente lite) in Virginia during seperation. Spouse went to North Carolina since we were a miltary family and originally from NC and held drivers licenses in NC and got a divorce and I was summoned to NC. Although we were residing in Virginia at the time of the seperation. I asked my lawyer what to do and was told that my spouse had canelled the divorce in NC and continued on with VA filing. Now after three years the Social Service office is saying that I may have to pay back all my child support to my spouse because the pendente lite was nullified after the NC divorce went thru without my knowledge and my lawyers advice of not pursuing it. Am I going to have to pay the support back? I have custody of our child and my spouse in no longer involved unless money is taken from their check.

  • I’m sorry, Confused. I have absolutely no idea. It sounds like the best way to find an answer to your question would be to talk to an NC lawyer.

  • Katie Tripp

    Me and my husband all most got devorced last year but got back together. Is the pl order still good or does it die with case since we dropped the devorce. I’m thinking of leaving him again and want to know if I need to another one put into play.

  • It would be safer to assume that it is no longer in effect and needs to be reinstated. I’m sorry.

  • Kayla

    Hello,

    My ex got sole custody of our 3 small children in November. I got supervised visitation at a visitation center. I hace appealed this but our hearing is may months away and many things have changed in my situatuon. Can I file for an amendment before the appeal? It is a final order just not how that works while I’m waiting!

  • Yes, you can file a motion to reconsider the ruling, but unless your case is unusual the same judge who issued the ruling will rule on the motion to reconsider. Your lawyer can help you decide whether there’s a reasonable likelihood of a favorable outcome from that.

Leave a Reply

  

  

  


six − 6 =

You can use these HTML tags

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>