Understanding Temporary Custody Orders in a Divorce

Temporary custody orders set forth each parent’s “temporary” rights and responsibilities regarding the custody and care of their children during a divorce. 

temporary custody order establishes the parents’ custody and visitation rights with the children until a final custody agreement can be reached between the parents. 

Tim’s Legal Tip: Temporary custody refers to the legal arrangement determining where a child will reside and who will make decisions regarding the child’s care and well-being during the ongoing divorce process. 

The purpose of a temporary custody order is to maintain stability and ensure the child’s best interests are prioritized during the potentially turbulent divorce process. 

Common Reasons To Obtain a Temporary Custody Order During a Divorce

Here are some common reasons why temporary custody orders are used during a divorce:

1. To Provide Structure During The Divorce Proceedings

Divorce proceedings can be lengthy and stressful. A temporary custody order provides a framework for where the child will live and how they will spend time with each parent during this time.

2. To Prevent Unilateral Decisions

If one parent moves out of the family home during the divorce proceedings, a temporary custody order can prevent that parent from making unilateral decisions about the child’s living arrangements or schooling.

3. To Create a Temporary Routine

Establishing a routine is beneficial for children, especially during periods of change. A temporary custody order sets out a schedule for living arrangements, visitation, and other aspects of the child’s life.

4. To Provide Protection For The Child If There is Abuse 

In cases where a child’s safety is at risk due to one parent’s behavior (like substance abuse, violence, etc.), a temporary custody order can provide immediate protection by awarding custody to the other parent or a suitable guardian.

5. To Create A Basis for a Permanent Custody Order

The conditions of a temporary custody order often influence the final custody order. If the temporary order works well for the child and the parents, a judge may make it permanent.

When Are Temporary Custody Orders Issued During a Divorce? 

Temporary custody orders are typically used during a divorce to establish immediate arrangements for child custody until a final decision can be made on the custody arrangement for the children.

Tim’s Legal Tip: Temporary Custody orders are often issued at the early stages of a divorce to ensure the children’s well-being. The judge will issue an order establishing temporary custody, living arrangements, a visitation schedule, and child support.

Here are some standard times with a divorce court will issue a temporary custody order: 

  • At the Onset of Divorce Proceedings: A judge will typically issue a temporary custody order when a couple first files for divorce if they have children. This order is designed to maintain stability and routine for the children while the divorce details are sorted out.
  • During Mediation or Dispute Resolution: Sometimes, parents cannot agree on a suitable custody arrangement. During mediation or dispute resolution, a temporary custody order might be put in place to provide structure and security for the children until a more permanent agreement can be reached.
  • In Case of Emergency or Danger: If there’s a significant concern for a child’s safety due to a parent’s behavior (such as drug abuse, violence, neglect, etc.), the court will issue a temporary custody order to protect the child. Depending on the circumstances, this order will award custody to the other parent, a relative, or even a child welfare agency.
  • In Situations of Parental Absence or Incapacity: If one parent is temporarily unable to care for their child due to illness, military deployment, or other reasons, a temporary custody order can arrange for the other parent or a designated caregiver to have custody during this time.

The key factor to remember is that these orders are temporary. Once the divorce is finalized, the court will issue a final custody order that outlines the long-term arrangement. 

Factors a Court Will Consider When Determining Temporary Custody

When determining temporary custody during a divorce or separation, a court will consider various factors to ensure the best interests of the child or children involved. 

Each state might have slightly different laws, but the following factors are generally considered:

  • Best Interest of the Child: This is the overarching standard that courts use when deciding child custody. The court’s primary concern is the child’s physical, emotional, and psychological well-being and stability.
  • Parent’s Ability to Care for the Child: The court will look at each parent’s capacity to provide for the child’s basic needs, such as food, shelter, clothing, medical care, and education.
  • Parent’s Mental and Physical Health: Each parent’s physical and mental health will be considered. Any health issues that might impact the ability to take care of the child can influence the decision.
  • Child’s Age and Preferences: Depending on the child’s age and maturity level, the court might consider the child’s preferences. Some jurisdictions have a specific age at which a child’s preference can be considered.
  • Relationship between Child and Parent: The court will consider the bond and relationship between the child and each parent. It will look into the involvement of each parent in the child’s daily life, such as homework, extracurricular activities, etc.
  • Stability of Home Environment: Courts prefer stable environments. They consider the parent’s living situation, including the home’s location, condition, and proximity to the child’s school and community.
  • Parent’s Willingness to Support the Child’s Relationship with the Other Parent: The court also examines each parent’s willingness to encourage and support the child’s ongoing relationship with the other parent.
  • History of Domestic Violence or Substance Abuse: If there’s any history of domestic violence, substance abuse, or other forms of misconduct by either parent, the court will take this into account, as these factors could pose a risk to the child’s safety.
  • Each Parent’s Work Schedule: The court will consider the parents’ work schedules. A parent who is never home may not be the best choice for physical custody.
  • Co-parenting and Communication Skills: The court will consider each parent’s ability to communicate and cooperate for the child’s sake, as well as each parent’s willingness to co-parent.

The court will usually ask for evidence to support each factor, which can be presented through documents, testimonies, reports from a guardian ad litem or custody evaluator, and sometimes the child’s testimony. 

It’s important to note that the court will weigh all these factors together, and no single factor will be decisive. 

An Example of a Temporary Custody and Visitation Order


Case Number: [xxxx]

In the Matter of the Marriage of:

[Sarah Doe], Petitioner


[John Doe], Respondent


This matter having come before the Court on [date], and the Court having reviewed the pleadings, and all parties being represented and having been heard, the Court makes the following:


  1. The Court has jurisdiction over the parties and the subject matter.
  2. It is in the best interest of the minor child, [Lily Doe], age [5], that the following child custody and visitation order be made.


  • TEMPORARY CUSTODY: Petitioner, Sarah Doe, shall have temporary physical custody of the minor child during the week. Respondent John Doe shall have temporary physical custody of the minor child every other weekend from Friday at 6:00 PM to Sunday at 6:00 PM.
  • VISITATION: Respondent, John Doe, shall have visitation rights with the minor child on Tuesdays and Thursdays of each week, from 5:00 PM to 8:00 PM. This arrangement is subject to reasonable flexibility if agreed upon by both parties.
  • EXCHANGES: Exchanges of the minor child shall occur at [specific location] or another location mutually agreed upon by the parties. Each party shall be responsible for transportation at the beginning of their custody period.
  • CONTACT INFORMATION: Each party shall always keep the other party informed of their current address and telephone number.
  • TEMPORARY ORDER EFFECTIVE: This Temporary Order will remain in effect until further order of this Court or until an agreement between the parties.

Date: [Date]

Judge’s Signature: [Judge’s Signature]

Judge’s Printed Name: [Judge’s Printed Name]

How Do Temporary Custody Orders Affect Child Support?

Child support and custody are two separate issues in family law, but they can be related because the child’s financial needs can change based on the custody arrangement. 

Here’s a general overview of how child support may work with temporary custody orders:

  • Establishment of the Order: A temporary custody order may be established during a separation or pending divorce proceedings. This temporary order is meant to maintain stability for the child until a final decision can be made. Similarly, a temporary child support order may be issued. This order usually determines which parent should pay child support and how much they should pay.
  • Calculation of Support: Child support is typically calculated based on the parents’ income and the child’s needs. In many jurisdictions, the noncustodial parent (the parent with whom the child does not live the majority of the time) pays child support to the custodial parent (the parent with whom the child lives most of the time).
  • Custody Considerations: In a situation where custody is shared equally or almost equally (as in a 50/50 split), child support may be adjusted. The specifics of this can vary by jurisdiction.
  • Changes to the Order: If there is a change in the custody situation, such as a change from temporary to permanent custody, the child support order may need to be modified. This typically requires going back to court or the agency that handles child support enforcement in your area.
  • Enforcement of the Order: Child support orders, even temporary ones, are legally binding. That means a parent who is ordered to pay child support and fails to do so can face legal consequences, such as wage garnishment, license suspension, or even jail time.

Please note the specifics can vary greatly depending on the jurisdiction, so it’s important to consult with a family law attorney or child support professional in your area for advice related to your specific circumstances.

Transitioning from Temporary to Permanent Custody

The transition from temporary to permanent custody is a crucial phase in the divorce process, as it establishes a long-term custodial arrangement that will shape the child’s future. 

The following are issues to address and consider when transitioning from temporary to permanent custody.

  • Assessment of Changes: As the divorce proceedings near completion, it is essential to assess any changes in circumstances since the temporary custody arrangement was put in place. Factors such as the child’s age, developmental needs, and any new information or developments that have emerged during the temporary custody period should be carefully considered.
  • Communication and Negotiation: Open and constructive communication between the parents is key during this transition. Both parents should engage in discussions to understand each other’s perspectives, concerns, and desired outcomes. Mediation or involving legal professionals can facilitate these discussions and help parents reach a mutually satisfactory permanent custody agreement.
  • Best Interests of the Child: The child’s best interests should be the guiding principle throughout the transition. Parents should prioritize the child’s well-being, emotional stability, and continued relationship with both parents. Decision-making should focus on creating a custody arrangement that supports the child’s growth, development, and overall happiness.
  • Legal Documentation: Once the permanent custody agreement is reached, it should be documented and formalized legally. This will involve drafting a parenting plan or consent order that outlines the custodial arrangement, visitation schedules, and decision-making responsibilities.
  • Ongoing Co-Parenting: Transitioning to permanent custody does not signify the end of the co-parenting journey. Ongoing communication and cooperation between parents will remain crucial in ensuring the successful implementation of the permanent custody arrangement. Flexibility and a willingness to adapt to changing circumstances are essential to meet the child’s evolving needs.
  • Emotional Support: The transition period can be emotionally challenging for both parents and the child. It is important to provide support and reassurance to the child, addressing any concerns or questions. Creating a safe and open space for the child to express their feelings can help them navigate the changes more effectively.
  • Seeking Professional Guidance: Throughout the transition, seeking professional guidance from therapists, counselors, or support groups can be highly beneficial. These resources can provide tools and strategies to navigate the emotional and practical aspects of the transition, ensuring a smoother adjustment for everyone involved.

Parents can ensure a successful transition from temporary to permanent custody by paying close attention to these detailed steps and considerations. 


Q. How long does a temporary custody order last? 

A temporary custody order typically lasts until the court issues a permanent one. This could be during the final divorce hearing, during a custody hearing, or at another time determined by the court.

Q. Can a temporary custody order be changed or modified? 

Yes, usually, a temporary custody order can be modified if a significant change in circumstances affects the child’s best interest. The process requires going back to court.

Q. Does a temporary custody order affect the final custody decision? 

Not necessarily. Courts usually make the final decision on custody based on what they consider is in the child’s best interests, considering many different factors.

Q. What happens if someone violates a temporary custody order? 

Violations of custody orders can lead to serious consequences, including contempt of court charges, fines, or changes to the custody arrangement.

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Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.

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