Family Law

Temporary Child Custody Can Become Permanent

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Spats over cars, furniture and other items usually aren't the most hard-fought arguments in a divorce. Usually, parents fight the hardest when it comes to child custody, and the fights typically begin almost as soon as one or both parents decide that divorce is inevitable.

From the very beginning then, a parent who wants permanent custody should start working on winning temporary custody, because one usually follows the other.

Significance of Temporary Custody

In the short term, a temporary child custody order is important because it provides stability to the parents and to the children during the divorce process. In the long term, however, winning temporary custody is even more important to the ultimate goal of winning permanent child custody. The parent who has temporary child custody has a great advantage over the other parent in winning permanent custody.

The Child's Best Interests are the Focus

The courts make permanent child custody orders based on the the best interests of the child. The courts look at all the circumstances of the case when deciding where and with which parent the child will get the needed emotional and physical support.

Normally, a court figures that a child is best served by not having to change environments if everything appears to be well with the current arrangements. The courts know that stability is important for the child. By winning temporary child custody, you'll have the chance to show at the final custody hearing that your child is doing well in your care. That makes it much more difficult for your ex-partner to prove that your child would be better off in a different environment.

Courts sometimes say that permanent child custody won't be influenced by temporary custody. However, most courts are hesitant to change a child's environment if everything is going well for fear that the good situation could change to a bad situation for the child.

Change in Child Custody

True, the parent who gets temporary child custody has an advantage when it comes to the permanent custody award. However, courts will consider all factors and will change child custody if there's enough evidence that it's in the best interests of the child.

Play by the Rules

Once you're given temporary child custody, make sure to follow the court's directions regarding the other parent's visitation rights. This shows the court that you're willing to cooperate and allow the other parent to be involved in your child's life even if you're given permanent custody. A court may change or "modify" the temporary custody order if you interfere with your ex-partner's visitation rights.

Likewise, if your ex-spouse has temporary custody and is preventing you from exercising your visitation rights, you need to keep records of specific instances and have witnesses willing to testify in court about it. This way, you may be able to have the temporary custody order changed.

De Facto Custody

Think carefully about moving out of your home and leaving your child with the other parent once the divorce begins. This may establish de facto custody for your ex-partner, which means actual custody of your children. The court will then decide whether the de facto custody should legally continue. De facto custody can easily lead to temporary custody, which in turn can lead to permanent custody.

De Facto Custody Can Change

At the temporary custody hearing, it's very important to challenge the other parent's de facto custody and ask for a change. This may be your only chance to challenge the de facto custody before the permanent custody hearing. The court might be reluctant to change child custody if you wait until the permanent custody hearing to challenge the de facto custody.

No matter what, it's important to keep in mind that, as stressful as the divorce is for you and your soon-to-be-ex, it's even more stressful for your child. The best course is to work out an agreement with the other parent, respecting each other's love for your child and the health and well-being of your child.

Questions for Your Attorney

  • What factors are important in gaining temporary custody of my children?
  • Can my soon-to-be-ex spouse stop me from moving back into our home with our child before the divorce and child custody is final?
  • If I lose temporary child custody, what should I do to gain permanent custody?
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