De Facto Custody
De facto means “what is.” De facto custody is the arrangement that exists at the time parents separate. If one parent moves out of the family home and leaves his children with the other parent, he has established de facto custody with that parent. He's effectively telling the court that he believes the other parent is perfectly capable of caring for his children. If parents decide to separate or divorce, but they remain living together during the legal process, they both have de facto custody.
De facto custody with one parent sets a precedent for temporary custody. Temporary custody orders occur when one parent begins either the divorce process or a custody lawsuit. Courts put temporary orders in place to govern the situation until they issue more permanent orders. Temporary orders ensure children contact with both their parents and set a visitation schedule as the litigation unfolds. They usually contain language stating that they’re only valid until the court issues a permanent order. If the children are happy and well-cared for during this time, a judge would need a compelling reason to change the custodial arrangement when he issues a permanent order.
When a divorce is final, the decree includes custody provisions. In custody lawsuits that are not part of a divorce, the judge issues an order at the end of the litigation when he makes his final decision. Both are permanent custody orders. During the divorce or custody trial, the parent with temporary custody can attempt to show how well the children are doing in her care and argue that there’s no reason to remove them from that environment. The non-custodial parent has the burden of proof to convince the court that the children would do better if the court ordered them to move to his home. This can be an uphill battle, but it’s not impossible, especially if the custodial parent has interfered with visitation during the term of the temporary order. After the court issues a permanent custody order, its terms go on indefinitely into the future. This doesn’t mean that the terms can never be changed, but something significant would have to occur in the custodial parent’s home to warrant a modification.
Enforcement and Modification
If a parent violates the terms of either a temporary or permanent order, the other parent can file a petition with the court for enforcement. Modifying or changing either type of custody order is usually more difficult. Judges are unlikely to change temporary orders because, by their very nature, they’re not forever. If the judge is going to change the terms of a temporary order, he’ll generally do so at the time he issues a permanent order to supersede it. Changing a permanent custody order involves going back to court for modification, and the parent seeking the modification would have to prove a change of circumstance that makes it inappropriate for the children to continue living in the custodial parent’s home.