Differences Between Temporary Child Custody and Permanent

By Beverly Bird

Most state courts base custody decisions on the best interests of the children. Many legislative codes are vague about what these best interests are, but they’re relatively uniform in opposing disruption to a child’s life by uprooting him from one parent and placing him with the other without good cause. Temporary custody often leads to permanent custody for this reason. The major distinctions between the two are their duration and a parent's ability to modify them.

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.

Temporary 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.

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Permanent Custody

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.

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Types of Custody Motions

References

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Texas Family Laws on Child Custody & Visitation

When parents divorce in Texas, the final divorce decree must include a parenting plan for children who are under the age of 18, disabled, or still in high school. The parenting plan must indicate who is responsible for making decisions for the children regarding such issues as schooling and medical care, as well as address parenting time and child support. The Texas Family Code states that parents must provide a safe and stable environment for the children and encourages frequent contact with the children as long as the parents demonstrate the ability to act in the children's best interests.

Colorado Joint Child Custody Laws

Colorado is one of the more progressive states when it comes to joint parenting post-divorce. Although many state courts won't order joint custody -- especially when parents are reluctant to try to get along -- Colorado judges order or approve the arrangement approximately 20 percent of the time, according to Marrison Family Law in Colorado Springs. The state assumes that joint custody is in the best interests of the children, unless parents are opposed to it, have an extremely hostile relationship, or one parent is unfit.

How to Behave in Custody Battles

The end of a marriage is difficult, but the idea of losing custody of your children is terrifying. A judge's only concern in deciding custody is your child's best interest. Parent behavior during a custody battle can influence the judge as he decides which residential placement meets that criteria. Knowing a judge's criteria in terms of your behavior can better help you demonstrate that your child's best interest lies with you.

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