How Long Can Temporary Custody Last?

By Beverly Bird

The word temporary can be somewhat deceptive when it comes to divorce law. Technically, it refers to pendente lite orders -- those that govern while your divorce plays out. The terms of your final decree take over when your divorce is final, so a temporary order lasts about as long as your divorce proceedings do. Although a temporary order terminates with your decree, however, it's not uncommon for its terms to carry over into the permanent order.

The word temporary can be somewhat deceptive when it comes to divorce law. Technically, it refers to pendente lite orders -- those that govern while your divorce plays out. The terms of your final decree take over when your divorce is final, so a temporary order lasts about as long as your divorce proceedings do. Although a temporary order terminates with your decree, however, it's not uncommon for its terms to carry over into the permanent order.

Pendente Lite Orders

If you separate before your divorce is final, and if you have kids and they stay in the marital home, you or your spouse can petition the court for a pendente lite order setting custody and visitation terms. This usually results in a court hearing, but it's not a full-blown trial. You normally cannot testify, nor can you call custody experts as witnesses. The judge usually reviews your written submissions explaining why you think temporary custody should be awarded a certain way, and he may have a few questions for you or your attorney. It's generally accepted that his ruling is subject to modification in your final decree, after you and your spouse negotiate a permanent parenting plan or you go to trial. If you don't like his temporary ruling, you may not have much recourse. You usually cannot appeal a temporary order, and in some states, you can't even file a motion to modify it. Because the order is considered temporary to begin with, the court will usually wait to revisit custody terms at your divorce trial if you and your spouse can't reach a settlement.

Divorce is never easy, but we can help. Learn More

Custody Factors

Courts favor stability and continuity in children's lives when their parents are divorcing. At trial, judges will base permanent custody on a series of factors designed to determine what is in the best interests of the children. These statutory factors often include reference to where the children have been living all along, and with whom. For example, Michigan's best interests statutes cite "the length of time the child has lived in a stable, satisfactory environment" and "the permanence…of the existing or proposed custodial home," and these factors can apply to temporary custody decisions as well. If your spouse stays in the family home when you break up, if you then rent an apartment for yourself, and if she petitions the court for temporary custody during your divorce proceedings, the judge is likely going to place the kids with her -- albeit temporarily -- rather than make them move.

Temporary to Permanent Custody

Assuming your spouse gets temporary custody of your children until the divorce is final, you may face the same best interests hurdle at trial when permanent custody is decided -- and now it's become even more formidable. The judge may still be reluctant to make your children move, at least if all other things are equal and you haven't proved that your spouse is an unfit parent. Temporary custody orders often turn into permanent custody orders for this reason. Temporary orders establish a norm for your children during the pendency of your proceedings, on top of the norm created for them while your marriage was intact. If nothing else, the judge has already decided once, early in the proceedings, that your spouse is the more appropriate parent, so you're faced with trying to convince him at trial that his first decision was wrong.

What You Can Do

If custody is likely to be contested in your divorce, speak with a lawyer. Initial hearings for temporary custody are often pivotal to the proceedings and they can help determine the terms of your final decree. At the very least, don't move out of the family home until you've conferred with an attorney.

Divorce is never easy, but we can help. Learn More
How Does Temporary Custody Work in MO?

References

Related articles

How to Appeal a Temporary Order of Child Custody

In the context of divorce, temporary custody is truly temporary – it lasts only from the time the order is issued until your divorce is final. Its terms can have serious ramifications, however. Courts don't like to disrupt children's lives, forcing them to move from one parent's home to the other when a final decree is issued, so the parent with temporary custody may have an edge when permanent custody is decided.

What If a Child Custody Decision Has Been Made But Changes Occur?

It's not a foregone conclusion that parents move into separate households the minute they decide to divorce; many remain in the marital home together. If you decide to part ways, custody and visitation can become an issue long before your divorce is final. You generally cannot take your children and leave without a court order giving you permission to do so, but you can reach an arrangement by consent or the court can issue one after a hearing. Either way, if your situation changes after the order is in place, you have a few options for modifying it.

How to Get an Emergency Court Order for Visitation Rights for a Father

In most cases, family court judges want you to have time with your children just as much as you do. Even if the court finds that for some reason you’re unfit for full custody, the judge will typically grant supervised visitation, allowing you to see your kids with a responsible, third party adult present. State courts are vested in maintaining the parent-child relationship, so if your soon-to-be ex is depriving you of visitation, all you really have to do is get into court to ask for an order.

Get Divorced Online

Related articles

Family Law on De Facto Relationships

"De facto" is a legal way of saying, "It is what it is." When de facto refers to divorce, it is the ...

Who Gets Kids Before a Custody Hearing?

As long as you and your spouse are living together, you both have custody of your kids. Divorce may be on the horizon. ...

What Happens in Divorce Court?

If you're headed for divorce court, you might be a bundle of nerves about facing the unknown. While worrying about the ...

Dating During the Temporary Custody Phase of a Divorce in Oklahoma

Oklahoma's divorce statutes don't include a specific prohibition about dating. They don't say that if you go out for ...

Browse by category