Family Law

Changing or Updating Temporary Child Custody

By Amy Castillo, J.D., University of Minnesota School of Law
Temporary custody orders can be hard to change, but if you present the right evidence, you might be able to persuade the judge to alter the order.

If you’ve begun a divorce or child custody action, a court may have already issued a temporary custody order in your case. The purpose of temporary custody orders is to stabilize children’s lives until a court makes a permanent custody decision and to prevent them from having to move back-and-forth between their parents’ households.

But what if the temporary order is now causing turmoil or strife in your children’s lives? What if something big has changed in the children's lives? It can be difficult to modify a temporary custody order, but this article will explain some options for how to normalize your children’s situation again when the other parent won’t agree to make a change.

Reasons to Modify a Temporary Custody Order

Courts can be reluctant to change a temporary child custody order because judges don’t want to upset a child’s living situation too many times. Most of the time, judges prefer to leave the situation as-is until it can be resolved at trial. Therefore, to get a temporary order modified, you’ll need a very compelling reason. Here are some examples of situations where a court might modify a temporary custody order:

  • The custodial parent is violating the terms of the existing temporary visitation order.
  • The custodial parent is endangering the children with violence, chemical dependency, cohabitation with a dangerous person, or some other situation that places the children in immediate harm’s way.
  • The custodial parent is interfering with the non-custodial parent's court-ordered visitation with the children.
  • The custodial parent is planning to move and take the children far away.

Back to Court: The Burden of Proof

If you want to change a temporary custody order, you’ll have to file a motion, write an affidavit (written statement), and collect other affidavits from professionals, neighbors, friends, and family members who support your motion.

In most states, the court will change or adjust the existing temporary order if the parent who claims the children are being harmed can prove it by showing a “substantial change in circumstances.” This means there’s a clear and concrete difference in the way things were when the court issued the temporary order as compared to how things are in the present. In other words, the facts and circumstances have changed so much that the court must consider changing the temporary order to prevent further harm to the children.

How the Court Will Make a Decision

If you file a motion to change a temporary custody order, the judge may schedule a hearing to gather facts and information from all the witnesses. The court may, alternatively, choose to make a decision based on the affidavits and other paperwork you and the other parent submit. Quite often, the court will appoint a “guardian ad litem” or a custody evaluator to talk to the children and the adults and issue a set of recommendations.

In any event, the court will make a decision that’s based on the best interests of the children, considering various factors, including:

  • the quality of the relationship between the children and each parent
  • the child’s adjustment to the current home, school, and community
  • the mental and physical health of everyone involved in the case
  • the children’s preferences regarding custody, if they’re old enough to express a reasonable preference, and
  • the child’s culture, education, and religion.

When the court issues a new “temporary order,” you may or may not get custody. However, if you request that the court require both the children and the parents to attend appropriate counseling (family therapy, chemical dependency treatment, or domestic violence counseling), and if a guardian ad litem supports your request, it’s reasonable to assume the court will at the very least order the kinds of measures that will help your kids feel healthier and safer. Often, if a court finds that visitation with one parent is putting the child in danger, a judge may order supervised visitation.

If you have any questions, be sure to consult with an experienced local family law attorney as soon as possible.

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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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