Supersedeas

What on earth does “supersedeas” mean?

When a trial court enters a final judgment, such as a judgment for divorce or a final order for child custody, either party has the right to appeal the judgment to the Court of Appeal.  When the appeal is made the final judgment or order does not take effect. It is stayed until a decision is made on the appeal.  The halting of the judgment or order while the appeal is underway is called “supersedeas.”

So what happens if (a) the trial court had previously issued a temporary order for child custody, visitation, child support, and alimony, (b) the trial court then issued a final judgment different from the temporary order, and (c) a party appeals the final judgment.  Does the temporary order continue in effect or should the parties start following the final judgment or order?

The answer is: (a) the new provision regarding custody and visitation should be followed; and (b) the prior, temporary provisions regarding child support and alimony should be followed.  But what if the final order switches custody and reverses the direction of the child support? Does the party who now has custody under the final order continue to pay child support under the temporary order?  Obviously, this would not make any sense because the child support money would be going away from the child rather than toward the child.  Yet this is what the law seems to require.

Fortunately, there is a solution to this problem:  the trial judge can order that the supersedeas stay does not apply.  The attorney representing the party who now has custody and should be receiving child support can ask the trial judge to make the new child support effective during an appeal.  Indeed, the attorney should also make this request anytime the final judgment or order benefits their client and an appeal is taken.  The judge can always deny the request, but it does not hurt to ask.

Views of Shared Physical Custody

Recent social science research has suggested that shared physical custody may be more viable than previously believed.  Traditionally, sole physical custody to one parent was believed to be in the best interest of the child.  Children were thought to be more attached to one parent and to benefit from the stability and continuity of sole physical custody.  Additionally, the conflict between the parents at the time of the divorce was believed to make shared custody unworkable.  Shared physical custody was thought to be viable only for the unusual family in which the parents still get along well at the time of the divorce and mutually agree to share custody.

But studies over the last ten years have suggested that shared physical custody may work better than previously believed.  Children seem to adapt fairly well to going back and forth between two homes. Most parents seem to be able to settle into a shared physical custody arrangement, even if they were in conflict at the time of the divorce.  Finally, shared custody kept both parents involved with the children.  The studies indicate that children usually benefit over the course of their lives from stronger relationships with both parents.

There are times when shared physical custody will not work.  A pattern of domestic violence points strongly against shared physical custody.  Unfitness of a parent, or a parent who has a high conflict personality, also points away from shared custody.

While each situation is unique and the studies found plenty of shared custody arrangements that failed, the research indicates that shared physical custody may work better for children than previously believed.

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