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Filing for Temporary Custody: Step-by-Step

For many parents preparing to file for divorce, one of the key considerations is custody of the children. Often, the parent filing for divorce will file a request for temporary custody at the same time. If the request is not made at the time of filing for divorce, either parent can file a separate request for temporary custody at any time during the divorce proceedings. This article outlines the steps to file for temporary custody.

The Steps to File for Temporary Custody

  • First, stop and think about why the children should be with you. Make a list of reasons, such as access to their school, friends and activities. Think about how you will be able to care for and support the children. If you work, have you made arrangements for child care?
  • Think about how you will help the other parent maintain contact with the children--this is an important part of the judges decision. The judge is more likely to award temporary custody to the parent who will help the children have contact and visits with the other parent.
  • Fill out the required forms by the court in your area. Make sure you answer all of the questions. Be as specific as you can about why the children should be with you.
  • Take the form to the court clerks office in the courthouse where your divorce was filed. Pay any fee required and give the form (you may need multiple copies) to the clerk. If you cant afford the fee, ask the clerk how to apply to waive the fee. The clerk will stamp some things on the form and give one copy back to you. Keep this for your records.
  • The clerk will give you a court date for your temporary custody hearing. It could be the same day or several days away.
  • On the day of the temporary custody hearing, arrive a few minutes early, find the right courtroom and approach the person sitting near the judges bench. Tell that person your name and the case number given to you by the clerks office.
  • When your case is called, be calm. Answer the judges questions fully and be respectful at all times. Call the judge "Your honor."
  • If there was an issue of domestic violence in your relationship with your childrens other parent, make sure to tell the court. Again, be respectful and do not interrupt the judge. Always address your comments to the judge, not to the other parent or anyone else.
  • No matter what decision the judge makes, accept it gracefully and leave the courtroom. Arguing with a judge is always a bad idea. If you are awarded custody, do not gloat or say anything rude to the other parent in front of the judge.

Temporary Custody Forms

If you have a lawyer, he or she will have the proper court forms to ask the judge to grant temporary custody during the divorce proceedings.

If you dont have a child custody lawyer, call the courthouse where your divorce was filed and ask whether they have a "self-help center." This is a place where people without lawyers can find court forms and get some assistance in understanding and using the court system.

If your local court does not have a self-help center, ask if there is a time when a legal aid organization will have lawyers at the courthouse to help people with their documents. Be prepared for the fact that such help is usually offered on a very limited basis. You will still have to do most of the work on your case yourself.

If your local court does not provide a self-help center or legal aid attorneys, you will have to obtain the correct forms yourself. Ask the clerks office at the courthouse where to get a form for filing for temporary custody. The office will provide you a form or tell you how to get one, but the staff members at the clerks office are usually not allowed to help you understand or fill in the form. In some states, forms are available online.

What Happens When Temporary Custody Expires?

Temporary custody usually continues until the divorce is final, at which time the judge will enter a permanent custody order. In some states, however, temporary custody orders have a specific expiration date. If your order expires before the divorce is final, file a motion asking the judge to extend the temporary custody order.

If you were not awarded temporary custody, when the original order expires, file a new motion for temporary custody. Explain to the court how circumstances have changed since the original order and why you would now be the best parent to have custody of the children. Recognize that many courts dont like to change custody unless there is a compelling reason.