Temporary Custody Orders Are Entered with Little Information
A lot of people have the misconception when going into a divorce case that a temporary order awarding one spouse sole custody of the children will ultimately result in the same ruling as a permanent custody order. People should not jump to this conclusion because it is not true.
Temporary custody orders are usually entered shortly after a divorce case is filed. The order is usually just based on the parties’ affidavits. There is no testimony given, no expert witnesses called, and generally no parental fitness evaluations or mental health evaluations conducted prior to such orders. The court will enter such an order on bare bones evidence. For this reason alone parties should not too excited about a temporary order in their favor or too upset over a temporary custody order that favors the other spouse.
What Have Courts Said On the Issue?
Utah case law is pretty clear on this issue. In Tucker v. Tucker, 910 P.2d 1209 (Utah 1996) reiterated its position that temporary custody orders are only that…temporary, and that such orders are effective only until a permanent order can be entered by a judge who is fully informed on the issue. Additionally, unlike permanent custody orders which can only be modified based on a substantial/material changed in circumstances, temporary orders need no such change in circumstances. Temporary custody orders can be changed through showing by a preponderance of the evidence that it is in the bests interest of the children to change custody.
How Do Courts Consider Temporary Custody When Determining Permanent Custody?
Trial courts may not give temporary custody orders as much weight as a permanent custody order but they can consider the temporary arrangement when deciding how custody should be arranged permanently. As long as the trial court does not abuse its discretion it is permitted to give appropriate weight to the temporary order.
A temporary order can create problems for the spouse who it does not favor if it lasts a long time. For example, if the parties battle over custody for months and even years a court is likely to consider the amount of time that the child has been with the parent who was awarded primary temporary custody and if that parent has proven to be fit, the court will want to err on the side of maintaining stability for the child. In such cases it is extremely important for the noncustodial parent to provide the court with persuasive evidence why it is in the best interest of the child to have the temporary custody arrangement changed.
Thus, in conclusion, although a temporary custody order does not carry the weight of a permanent order, it can influence how a court rules on a permanent custody arrangement.