In Family Court, temporary orders are issued by the judge for custody, visitation and/or child support. In addition, temporary restraining orders are often granted in instances where there are allegations of abuse against either party or their child(ren). Temporary orders have been meant to grant either party or both, relief while the case is still pending. However, there are times when temporary orders cause more problems.
What A Family Court Temporary Order is
A temporary order in Family Court is when the judge addresses an issue brought up in either party’s petition or complaint. That initial document could be seeking custody, visitation, child support, divorce or restraining order. A temporary order can be done by the judge on an ex parte hearing or appearance or when all parties are present. If the issue was brought to the court on an emergency petition, it’s usually done ex parte, and the judge can issue a temporary based on just one person’s version.
In ex parte hearings or court appearances, the person seeking the assistance of the court (referred to as the Petitioner or Plaintiff) will give their testimony without the other party being present. The judge will decide if their account justifies it issuing a temporary order. The temporary can cover custody, support and/or restraints in contact. What the judge will include in the temporary depends on what the Petitioner requested and what the judge feels is necessary based on testimony and evidence.
What does a Family Court Temporary Order Mean
Being granted temporary custody has no bearing on the final order of custody. There are instances where it is only as a matter of procedure that one is granted temporary custody as opposed to the other party.
This happens in emergency petitions frequently. A party files an emergency petition for custody based on some pretty harsh allegations and the judge awards temporary custody to that person. The thing is it is not that the court believes them. The judge must make a split decision in a few minutes’ time with no factual evidence. So, if the allegations can pose an immediate danger to the child(ren) then the judge will err on the side of caution.
This means there is no substantive basis for the ruling, it’s just a matter of policy and procedure. The opposing party will have the opportunity to defend against such allegations and then a ruling can be made based on their side too.
Temporary orders have the same power or authority as a final order. Even if it changes the terms of a previous court order or agreement, it becomes the ruling authority in the case until it is changed. If the parties are not satisfied with the terms of the temporary order, there is little that can be done to change until the next court date.
Temporary orders can be in place until the next court date or longer, it’s up to the judge. The judge will decide if a temporary order should be modified based on what they think is best while the case is still pending.
The Problem with Family Court Temporary Orders
Even though temporary orders are in fact temporary, they do become final orders at times. What this means is that even though the trial run brought all sorts of issues, with respect to the practical aspects, they are often ignored. And when either party has an issue with the provisions of the temporary order, they are more inclined to prolong resolution. Cases often drag on longer in Family Court, a lot of times unnecessarily. This can wreak all sorts of havoc on all the parties involved.
Also, sometimes cases are pushed further and further back because of the court, the attorneys or other factors that have nothing to do with the parties. This unfairly imposes unfair and undue hardships on the party(ies) that are limited by the temporary order.
Further, procedurally, there is no way to seek a modification of a temporary order. This means that if the temporary order was issued in January and the next court date isn’t until June, the parties are stuck with the directives of the order until that June court date. The only recourse, in some instances, is if the parties’ attorneys stipulate to a modification or if there is a mediator involved.
And last, there is no appeal process for temporary in most cases. Because they are only temporary, the practical implications of appealing them is meaningless. The appeal process usually takes years in Family Court, sometimes temporary orders only last for months.
How to Use Temporary Orders to Your Advantage
You can use temporary orders to your advantage in your Custody Gameplan. Your Custody Gameplan should factor in the possibility of having temporary orders imposed and how they can be useful. Temporary orders can be seen as a practice run for several scenarios. For example, a parenting plan or schedule that was temporarily ordered by the court can be helpful for parents to see how the logistics play out. Driving distance, scheduling time, planning events, etc. are all things all the parties can get a feel for with a temporary order. This way each party can make informed decisions when it comes to the final order for parenting time.
Temporary orders can also be used as leverage in settlement discussions. If either party is not fond of the temporary order, the other party can use the opportunity to negotiate something else in exchange for changing it.
Temporary orders can also be used to get inside the judge’s head. It is extremely important to get insight into how your judge would rule on certain issues in your case. When they issue a temporary order, it is a clear indication of which issues they give priority to over others. This is a critical practical tip that I suggest to everyone involved in a custody battle or divorce action. (Read here for more like this.)
You should always ask for temporary orders when you are in court. In the Initial Appearance, you should ask the court to issue a temporary order for custody, support and/or restraining order. This way you have something to guide you through the process. At the Status Conference or any court appearance afterward, you should make another request for temporary orders. You can also always ask the judge to revisit the temporary based on your observation of what has or has not been working.
There are both pros and cons to having the judge issue temporary orders, especially in instances where there is a real emergency. The thing is that they do have limitations too. It is important to not look at them as only temporary but to factor their impact into your overall goals in your divorce or custody case.
If you should wish to discuss creating strategy in your divorce or custody case, please feel free to contact me here.