Can I Get a Temporary Custody Order?


Temporary custody orders require filing a petition, compliance with the statute, and hopefully the parents will settle any disputes before a hearing is held.

VIDEO TRANSCRIPT

Many parents worry about keeping the children with them while divorce is pending. In my years of family law practice, I’ve had many clients ask, Can I get a temporary custody order?

Hi.  My name is Miles Mason. I’m a divorce attorney and the founder of the Miles Mason Family Law Group. We represent clients in the greater Memphis, Bartlett, Collierville, and Germantown, Tennessee areas.

In this message, I explain the process of obtaining temporary child custody orders in Tennessee.

Requests for temporary custody orders are filed in cases of divorce, legal separation, annulment, and actions for separate maintenance. Just so you understand, any temporary custody order will be replaced with a permanent order when the divorce or other case is final. As you’ll see, obtaining temporary custody orders is not a given.

Let’s start from the beginning.

There are two most common reasons for requesting temporary custody orders.

Reason number one.

There is an emergency situation. Either parent can request a temporary custody order to protect the child.  For example, one parent may request a temporary custody order to prevent the other parent from removing a child from the court’s jurisdiction, to protect the child from an abusive or neglectful parent, to get the child away from a harmful environment.

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.

One more thing about emergencies.

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.

Reason number two.

In this situation, there is no emergency. But 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 will either rule on the petition or not rule on the petition.

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. There’s a legitimate reason for this.

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.

It’s always possible that parents won’t agree on a temporary parenting plan.

What happens then?  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.

That the judge may choose not to rule on temporary custody doesn’t mean you shouldn’t file the petition.

If a temporary custody order is important to you, then request it. Include your proposed temporary parenting plan with the petition, along with a verified statement of income. The judge’s temporary order will include a temporary parenting plan.  If your proposed plan is the only one submitted, the court may adopt it, but only after determining that your plan serves the child’s best interests. Child support may need to be determined as well, including child support worksheets to be finalized and approved or ordered by the court.

Tennessee has statutory minimum requirements for temporary parenting plans.  The statute I’m referring to is T.C.A. § 36-6-403. You need to know what those requirements are before filing your petition for a temporary custody order. Most notably, your temporary parenting plan must comply with some of the same requirements as a permanent parenting plan, even though the time constraints differ.

I’m Miles Mason from the Miles Mason Family Law Group.  Thanks for joining me.

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About 

Memphis divorce attorney and family lawyer, Miles Mason, Sr. JD, CPA founded the Miles Mason Family Law Group, PLC. The firm practices divorce and family law only representing clients living in Memphis, Germantown, Collierville, Bartlett, Eads, Shelby Co., Fayette Co. Tipton Co., and the surrounding west Tennessee area. For more information, see our Meet the Team page.

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