Family Law

Changing or Updating Temporary Child Custody

A temporary child custody order is important for the stability of all parties during the divorce process. However, there may be reasons why you want to change or update the temporary custody order. The temporary custody order can be changed through a hearing on a petition for modification. The temporary custody order can also be changed through a habeas corpus proceeding.

Circumstances for Changing Temporary Custody

Courts have a high standard for changing a temporary custody order. They want the children to have a stable environment during the divorce process and not have to move back and forth between two parents. In order for you to change a temporary custody order, a court will usually require you to show substantially changed circumstances.

There are a variety of events that could be considered changed circumstances. Some examples include:

  • Remarriage
  • Improved financial conditions
  • Improved mental condition
  • Improved health
  • Children's preferences

These changed circumstances relate only to events that have happened since the court entered the temporary custody order. However, some courts may consider circumstances before the temporary custody order if they weren't taken into account at the temporary custody hearing.

Burden of Proof for Changing Temporary Custody

The burden of showing substantially changed circumstances is on the party attempting to change temporary custody. If you're attempting to change temporary custody, it's often not enough to show a change in your circumstances. A detrimental change in the other parent's circumstances might also have to be shown.

The chances of changing a temporary custody order are very low. You must prove that the children are in a detrimental situation and that there's been a substantial change since the court entered the temporary custody order. The court is mostly concerned with the best interests of the child.

Another purpose for filing a petition to change the temporary custody order is to let the court know of a new situation before waiting for the final hearing. Even if the petition is denied, the judge will now be aware of the new situation and will be interested in any new developments at the final hearing.

Habeas Corpus Proceeding

Another way for you to attempt to change a temporary custody order is by filing a petition for a writ of habeas corpus. A petition for a writ of habeas corpus states that someone is wrongfully in possession of your children and that you have a legal right to them.

The court requires proof of substantially changed circumstances before it will change a temporary custody order based upon a writ of habeas corpus. The court will use the best interests of the child standard to guide its decision.

Questions for Your Attorney

  • What substantially changed circumstances would allow the court to change the temporary custody order?
  • Will the court consider circumstances that changed prior to the temporary custody order?
  • Should I try to change a temporary custody order with a modification petition or through a habeas corpus proceeding?

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This article was verified by:
Jacqueline Newman | April 02, 2015
521 Fifth Avenue, 31st Floor
New York,NY
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