Family Law

Establishing Temporary Child Custody

By Kristina Otterstrom, Attorney
Get the facts about temporary child custody orders.

If you’re contemplating divorce, you should also consider how your separation will affect child custody. Do you expect your children to live with you? Will you live far away from the other parent? Who will cover child support and health insurance for your kids? If you and your ex have an amicable relationship, you can agree to share custody and let the children remain in their same neighborhood and schools. But if you and your child's other parent can't agree on anything, you may want to ask a judge for temporary custody and visitation orders.

What’s the Purpose of Temporary Child Custody?

As its name suggests, temporary child custody is not permanent—it’s temporary and meant only to last until the divorce or child custody proceeding ends. In most cases involving children, a court will order temporary custody to provide the child with stability as the case proceeds. A temporary child custody order can also prevent a parent from moving out of state with a child during the divorce. For example, you may want to file for custody if your ex is threatening to take your child away from you. A custody order will help you retain your parental rights and preclude the child’s other parent from doing anything to endanger the child or your parent-child relationship.

How Can I Establish Temporary Child Custody?

In most cases, temporary custody isn’t automatic. You will need to file a request to establish custody while your divorce is pending. This request can be made in your divorce petition or shortly after your initial divorce paperwork is filed. A judge will hold a hearing on your custody request. It’s important to come well prepared to any custody hearing because the proceedings may also address:

How Will a Judge Determine Custody?

The factors affecting custody depend upon the particular laws of your state. However, a child’s best interests are always central to any custody decision. Some of the most common custody factors include:

  • each parent’s relationship with the child
  • each parent’s physical and emotional health
  • the child’s physical and emotional needs, and
  • each parent’s ability to meet the child’s needs.

If you have questions about custody laws in your state, you should talk to a divorce attorney who can help you understand your legal rights and highlight facts that are helpful for your case. You should take a temporary custody hearing seriously. Although it’s not a permanent custody award, these kinds of rulings often influence final decisions.

Can I Lose Temporary Custody?

Although temporary custody orders usually stay in place until a divorce order is finalized, a judge can always alter custody if it’s not serving the child’s best interests. A parent can lose temporary custody if there’s been a major change in circumstances, the child’s needs aren’t being met, or one parent is preventing visitation with the child’s other parent. However, even if you lose temporary custody, you may still be able to regain it in the future.

You should take advantage of any visitation offered with your child. It’s also important to stay current on child support if you’re the paying parent. Keep records of your visits and any extra money you spend on your child for things like new clothes or extracurricular activities—these good facts can help persuade a court that you’re putting your child’s needs first.

Ultimately, courts will make permanent custody decisions based on what would best support a child’s health, safety, welfare, and stability.

Questions for Your Attorney

  • When should I file for temporary custody?
  • Do I need to establish temporary custody if my spouse abandoned our family?
  • My spouse was awarded temporary custody, but I’m worried that my child is in danger. What can I do?
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