Requests for temporary custody orders are filed in cases of divorce, legal separation, annulment, and actions for separate maintenance. A temporary custody order will be replaced with a permanent order when the divorce or other case is final. Obtaining temporary custody orders is up to the discretion of the court.

Emergency Temporary Custody:
In many custody proceedings, whether it is through divorce, modification of custody or simply establishing initial custody and parentage, there are emergency circumstances where a parent can — and should— ask the court to grant him or her emergency temporary custody over the minor child.

In Order To Have Grounds To Ask For Emergency Temporary Custody, A Parent Must Be Able To Prove That There Are Serious Circumstances That Warrant An Emergency Change.
This can include showing the child in question could potentially be removed from the jurisdiction of the court (usually the other parent threatening to take the child out of the state and never returning), or there is fear that potential danger or imminent harm will occur if the child continues to stay in the other parent’s care (such as the mother or father recently obtaining a DUI with the child in the car and a history of drinking heavily around the child).

An emergency petition for a temporary child custody order may be made ex parte. (Ex parte means no notice of the petition or hearing is given to the other parent.) Consequently, the other parent is prevented from participating, arguing, or presenting evidence. It’s because the other parent is left out that the court must review its temporary emergency custody order within 15 days. The review hearing is the other parent’s opportunity to present his or her side of story to the judge. After evidence and testimony is provided by both parents at the hearing, the judge will either continue the order, modify the order, or terminate the order.

An accident that puts the custodial parent in the hospital for an extended period, for example, is reason for the non-custodial parent to request a temporary custody order. The court can order temporary child custody whenever an emergency situation arises even after the divorce is final.

Non-Emergency Temporary Custody:
This could arise when one parent wants the status quo maintained (or stopped) with a temporary court order until a final order is entered. It’s possible that both parents want a temporary order. They may even agree on a temporary parenting plan.

In many cases where the parents are communicating, they want a plan in place so they both know what they’re doing with regard to legal decision-making and childcare. When parents agree, it’s possible that only one will file a proposed temporary parenting plan, which the court may adopt by default. Before the divorce, either parent may file a petition asking the judge to order a temporary parenting plan. What happens next will depend upon the circumstances.

The judge may prefer to not rule on the petition, preferring instead to wait until the trial and issue permanent orders then, especially when parents don’t have a genuine, heated dispute. This is because any hearing on temporary custody is likely to take just as long as a full-blown custody trial. In other words, one custody battle in the case is sufficient for many trial judges. Judges resist inviting another battle over the temporary custody question. If the parents cannot agree on a temporary custody plan,if the judge opts to rule on the petition for a temporary custody order, then the parents will likely be ordered into mediation, just as they would if they were not in agreement on a permanent parenting plan. If mediation doesn’t resolve their differences, then a hearing will be held. Both parties present their cases at the hearing, along with evidence, just as they would in a custody trial.

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