When it comes to two individuals who share a child or children, if those parties are going through the divorce process or separating, the issue of child custody will have to be addressed. As a legal term, child custody refers to the legal and practical relationship between a child and their parent or custodian.
It is important to note that the exact laws concerning child custody will vary by state. Therefore, you should always consult and be familiar with your local and state laws on child custody. Not only will child custody have to be addressed in the long run, but child custody will also have to be addressed during the pendency of the legal proceedings or while the parents are working out a custody arrangement.
In other words, there will have to be a temporary child custody arrangement that the parents will follow while the long term custody arrangement is being determined. This temporary arrangement often comes in the form of a temporary order from the local court handling the divorce or separation case.
A temporary custody order is important to establish rules and a schedule for the care of a child or children while going through the divorce or separation process. Additionally, temporary custody orders often work as a trial run for determining a custody arrangement that works best for all parties involved.
The following article discusses temporary custody orders, how and when such orders occur, as well as what happens after a temporary custody order is granted.
How Do Courts Determine Child Custody?
As mentioned above, each state has their own laws concerning child custody. However, every state will always adhere to the child’s best interest standard when making any decision that involves a child.
The child’s best interest standard is a legal standard which states that all decisions related to a child must be made in accordance with the child’s interests and backgrounds being placed above the parent’s personal preferences. In other words, all decisions must be made in the child’s best interest.
In general, most courts presume that a child spending time with both parents is in the child’s best interest. This is true for both long term child custody orders and temporary child custody orders.
When it comes to determining temporary or long term child custody, the court will generally consider all of the following:
- The child’s background, such as their sex, age, personal health characteristics, and special needs
- The child’s own preferences, if they are old enough according to their state’s guidelines to make a decision regarding their living arrangement (generally, a child must be at least twelve years old to make such decisions)
- Environmental factors, such as the quality of education in each parent’s school district, the safety of each parent’s neighborhood, and each parent’s proximity to the child’s extracurricular activities
- The physical and mental health of each parent, as well as their ability to provide emotional and financial support for the child while the child is in their care
- The stability of each parent’s lifestyle, background, and employment
- The existence of and level of attachment to other family members in the home, such as siblings or grandparents
- Each parent’s commitment to facilitating an ongoing and healthy relationship between the child and the other parent
Although the importance of the factors above vary from state to state, courts will generally determine the stability of each parent’s home environment, and their interest and commitment to caring for the child. The overall goal of courts is to make a decision that promotes the health and wellbeing of the child.
In general, most state and local laws concerning child custody are based on the presumption that it is in the child’s best interest to have a joint custody arrangement. A joint custody arrangement refers to a situation where the child is able to spend time with both of their parents. The presumption is that such custody arrangements where a child’s parents are both involved in making decisions regarding the child are in the best interests of the child.
What Is a Temporary Child Custody Order?
Once again, during the divorce or legal separation process, there are many family related issues that must be addressed by the court while the case is ongoing. In fact, many family court rulings will take months or years to reach a final decision on all of the decisions on all of the issues that must be addressed in the case.
However, some issues, such as child custody, cannot go undecided for that long. Temporary orders are one way that a family law court will address and provide temporary solutions to some specific issues until the court is able to make a final decision during a final hearing.
A temporary child custody order is an order of the court that establishes a temporary custody arrangement for the care of any child involved in a pending divorce, separation, or paternity proceeding.
Temporary child custody orders can address various aspects related to the custody and care of a child, including:
- Where the child will primarily reside during the pendency of the proceedings
- The visitation or physical custody rights of the non-primary parent during the proceedings
- The decision making authority of each parent with regard to their child’s physical and mental healthcare, education, and other activities
- Whether or not there should be an order for temporary child support while the case is ongoing, and if so, what that amount should be
- Whether or not one parent should be removed from the household where the child primarily lives
- Whether or not there will be any travel or geographic restrictions regarding the child
- Whether or not home studies should be ordered that evaluate the living arrangements of both parents
- Whether or not a temporary attorney ad litem should be appointed to represent the child in the custody proceedings
- How long should the temporary order be in effect, including when the temporary order should be reviewed
In many cases, both parents are able to cooperate and work together to reach a temporary custody arrangement that works best for both of their schedules. If this is the case, the parents can simply present that temporary agreement to the court, and the court can then adopt their mutual agreement.
However, when the two parties are unable to agree on child custody, the court must ultimately determine an arrangement in the best interests of the child. This means a trial on the temporary custody of the child must occur. This results in the custody process being longer than in uncontested custody cases where the two spouses agree on all the issues that must be addressed.
How Do I Win a Temporary Child Custody Case?
Temporary child custody cases will generally occur after a petition for divorce or petition for child custody has been filed. One party, known as the petitioner will initiate the proceedings, and the other party, known as the respondent, will be served with the petition and accompanying documents.
The court will then generally set a date for a temporary orders hearing. At that hearing the court will decide on numerous issues in the case, including the issue of child custody. At that point in time both parties will then have an opportunity to present evidence, testimony, and arguments supporting their position.
Being properly prepared and organized at a temporary custody hearing will always be beneficial. The following is a list of tips regarding preparing for a temporary child custody hearing:
- Conduct discovery prior to the hearing, which is a legal method in which you make requests and ask questions (i.e. interrogatories) to the opposing side
- Gather all of the evidence you have and have gathered, such as children’s school records, financial records, witness statements, home studies, photos of the children’s living situations, etc to support your position
- Be prepared to answer questions regarding the child, such as their schooling, emotional and physical needs, and support system
- Provide other evidence and testimony that demonstrates you will put the child’s best interests first by focusing all evidence and testimony on what is most beneficial for the child
What Happens After a Temporary Custody Order Is Granted?
After a temporary child custody order has been entered by a court, both parties will then have to follow that order. This means that if one party fails to follow the order, there will be consequences, such as being held in contempt of court or the court siding with the other party later on when it comes to making a final determination regarding custody.
Temporary order will generally include the period of time for which they are applicable. In other words, some orders may last until further hearing of the court or some orders may last for a set period of time, such as 30 days. In any case, it’s important to follow the orders and continue preparations for a final custody hearing.
Unlike final hearings on child custody, a temporary orders hearing will not often include a full presentation of all of the evidence and testimony. Instead, the hearing will look at the child’s current situation at that time, and try to find a workable temporary child custody solution.
As such, just because a temporary order may not be the best, there is still time to work out a solution that works best for all parties involved. Additionally, there is also still time to build a strong case that supports your requests for custody.
Do I Need a Lawyer for Help With Temporary Custody?
As can be seen, there are numerous factors taken into account when a court is determining temporary physical and legal custody of a child in the case of a divorce or separation. As such, if you are going through the divorce process with children or if you are going through a separation that involves children, it is in your best interests to consult with an experienced child custody lawyer.
LegalMatch can assist you with locating and setting up an initial consultation with a child custody lawyer in your area. A lawyer will be able to help you understand your state’s specific laws on temporary child custody.
Additionally, an attorney will also be able to help you gather evidence necessary to make your best case for being granted temporary custody during a temporary orders hearing. They will also be able to initiate and respond to any legal pleadings necessary to protect your rights as a parent. Finally, an attorney will also be able to represent you in court, at both a temporary and final hearing regarding custody.
