Child Custody Overview
There are two components to child custody: legal custody and physical custody. Legal custody refers to the right to make major decisions about the child's health, welfare, and education. Legal custody is commonly shared jointly by both parents, unless the court finds that giving one parent sole legal custody would be in the child's best interests. For example, if one parent consistently refuses to cooperate in the decision-making process and unreasonably rejects all proposals, a court will likely view this parent as a problem, and grant the other parent exclusive legal custody. Physical custody refers to who the child lives with.
Judges make child custody orders—both temporary and permanent—based on what would be in the best interests of the child. A judge will carefully consider all of the family's circumstances to determine what custody arrangement would best support the child's emotional and physical needs.
Temporary Custody Orders are Valid While the Divorce is Proceeding
When parents file for divorce, they need to make child custody and visitation arrangements while the case is proceeding through the court system. Depending on a number of factors, including where the divorce takes place, mandatory waiting periods, case complexity, and conflict levels, a divorce involving children may take anywhere from a few months to several years. During this time, either parent may ask a judge to issue a temporary child custody order. The temporary order sets forth how custody will work during the divorce, including who has the right to make decisions for the child, where the child will live, and when visitation will take place. Although a temporary order is just that—temporary—it carries weight when the court decides permanent child custody.
Permanent Custody Orders
At some point during the divorce, usually as part of the final judgment, a judge will issue a permanent child custody order that dictates how, when, and where the parents will share legal and physical custody, or whether one parent will have sole legal custody, sole physical custody, or both. Parents can agree on custody arrangements between themselves, but if they're unable to agree, then they'll have to ask a judge to decide.
The term "permanent custody" is a bit of a misnomer, because courts can always change custody arrangements if, in the future, it turns out the permanent order isn't serving the child's best interests. For example, it may be that at the time of the divorce, 50/50 shared physical custody was in the child's best interests. But, if two years later, one parent has become abusive or unfit to care for the child, a court can modify the custody order to help protect the child. Generally, the parent that wants to modify a permanent child custody order will have to show a substantial change in circumstances.
Judges May Hesitate Before Changing a Temporary Order
If a temporary custody arrangement has been working well for a period of time, a judge may be less inclined to modify it during the permanent custody phase. Family law judges know that children need routines and stability, so they try to avoid disrupting a child's environment too many times. If a child is thriving and has adjusted to the arrangements under a temporary custody plan, the parent that wants to change it may face an uphill battle in court.
To a large extent, temporary orders set the status quo for courts, so it's important not to brush them off. If you're on either side of a request for temporary custody, you should ask an attorney for advice.
Once you've received a temporary child custody order, make sure to follow the court's directions regarding the other parent's rights. For example, if you repeatedly interfere with your ex-partner's visitation, a court may make major changes in the permanent order, including transferring more custody rights to your ex.
Likewise, if your ex-spouse is preventing you from exercising your visitation rights, you need to keep records of specific instances and have witnesses willing to testify about it in court.
Questions for Your Attorney
- How should I prepare for a temporary custody hearing?
- Can my spouse stop me from moving back into our home with our child before the divorce and child custody is final?
- If I did not receive as much custodial time as I wanted in the temporary custody order, what can I do to gain more time in the permanent order?