A motion is a step in litigation where you obtain a temporary order for something needed such as temporary custody, child or spousal support, or even the right to move to another city.
They must be carefully thought out and brought with precision or skill because if you lose, you are going to pay the other party’s legal fee, if they are represented by counsel. It is imperative that there is always an Offer to Settle sent out at a minimum the day before the motion so you can argue that you beat your offer or came to close. It also helps the judge know that you were trying to resolve the matter without the necessity of resorting to using the court’s precious resources. A motion must be thought out because Judge’s are usually disinclined to make orders when there are affidavit wars and cannot make findings on credibility. It is well known that judges will err on the side of caution on a motion.
What does playing it safe mean? It means that if there is a child involved they will make orders that cause the least amount of disruption and preserve the status quo as much as they can unless there is independent third party corroboration such as an assessment or an OCL report which is helpful.
Should you get a private assessment? They are very expensive and can help the Judge make decisions on which way to rule if there is a conflicted custody and access battle. It helps the Judge to know if an alienating parent is causing a child to be estranged from the non alienating parent. A private assessment can cost up to $30,000.00. The risk involved is that the parent who doesn’t receive the benefit of positive recommendations in an assessment will attack it which now puts the assessment report on the hot seat and can raise the spectre of conflict.
A motion is always good to bring if a party wants to change the status quo. Even if you lose a motion the loss can benefit at you at trial as you can argue that you never acquiesced and brought a motion as you were unhappy with the arrangement or quantum of child and spousal support at that given time.
Motions have to be well thought out as the loser pays the winner’s costs. A skilled practitioner should have run a risk averse practice where motions are brought strategically and sparsely.
