Temporary Child Custody

Temporary child custody, issued through a temporary custody order, is a court’s decision to award physical custody of a minor child to one parent pending a final determination of custody. Such an order may be issued when the child’s parents separate in anticipation of divorce, and a determination must be made as to where the child will reside until the custody issue is resolved.

The custody case is initiated when one of the parties files a custody petition with the court. The parent filing the petition is called the petitioner and the other parent is called the respondent. The custody petition sets forth the parties’ relationship to the child and the reasons the petitioner believes he or she should be awarded custody of the child. The court may appoint a lawyer to act on the child’s behalf and represent his or her interests.

Best Interests of the Child Standard

In making a temporary custody decision, the court will base its decision on a standard known as best interests of the child. The court will consider a number of factors to make this determination, with particular concern for the child’s physical and emotional development and well-being. Stability and continuity of the child’s schooling, activities, and family ties are important factors. The court would not want to unnecessarily uproot a child from a stable home environment unless there were overriding concerns for the child’s health and safety. Additional factors a court may consider include the mental and physical health of the parents and the extent to which the child is dependent upon or emotionally tied to a particular parent.

Child's Preference in Temporary Child Custody Determinations

Depending on the child’s age and maturity level, a court may also consider the child’s preference, provided it is reasonable under the circumstances. The court will generally give great weight to an older child’s preference. However, if the child’s preference is clearly at odds with his or her welfare, the court is less likely to defer to the child’s wishes. For example, if the chosen parent has a history of abusive behavior, drug or alcohol dependency, or is otherwise unfit, the child’s preference is not reasonable and clearly not in the child’s best interests.

Temporary Child Support

The parent who is awarded temporary custody is known as the custodial parent. The non-custodial parent is generally given visitation rights with the child and is usually required to pay child support payments to the custodial parent. A visitation schedule may be agreed upon between the parents. If the parents cannot come to an agreement regarding visitation, the court will determine an appropriate schedule, recognizing that it is in the best interests of the child to maintain a close and loving relationship with both parents.

Temporary child support is usually awarded when a temporary custody order is issued. In most cases, child support levels will be calculated using the state's child support guidelines, which use the income from both parents to make a determination as to how much support should be paid by the non-custodial parent to the parent with custody. Even if parents are awarded joint custody, in many cases the parent with the greater income will be required to pay support to the other parent. The amount of child support varies by the amount of time the paying parent spends with the child, so a parent with more visitation time pays less in child support than a parent who sees the child infrequently.

Temporary Child Custody Orders Can Become Permanent

Although a temporary custody order is supposed to be a short-term solution pending a final custody determination, the temporary order often evolves into a permanent custody order. If the parties cannot voluntarily agree to a custody arrangement, a trial will be scheduled so that the parties can present evidence to try and convince the court who would be the better caretaker for the child. In the interim, time passes and the current temporary custodial situation necessarily becomes the more stable environment. The child becomes attached to a certain school, activities, and friends, and it becomes more difficult to convince the court that disrupting the continuity the child has enjoyed is in the child’s best interests. This gives the parent who is awarded temporary custody an important advantage in the ensuing custody battle. Thus, a proceeding to determine temporary custody should be taken seriously and a parent should not voluntarily surrender the temporary custodial rights without careful consideration.

Circumstances that Cause Custody Changes

Under some circumstances, even if a parent is initially awarded temporary custody, he may not end up with custody in the permanent order. One of these circumstances is when the parent with temporary custody frustrates the non-custodial visitation rights. This might include not making the child available for visitation, or it could be as seemingly innocent as scheduling social calendars during the non-custodial parent's visitation time. Courts view a child's continuing relationship with both parents to be in the best interest of children, so if it can be shown that the custodial parent is unwilling to foster the child's relationship with the other parent and in fact obstructs the relationship, courts may award custody to the parent who seems more likely to nurture the child's relationships with both parents.