Learning the Lingo: Permanent Custody and Temporary Custody

Nov 6, 2009

One of the most confusing and misunderstood concepts in family law is the difference between “permanent” custody and “temporary” custody.  Clients frequently believe that they have one type of custody when they actually have the other.  And, many people who represent themselves fail to grasp the difference between these two types of custody.  In an effort to help you understand the difference I will explain each type of custody and highlight some differences.

“Temporary” custody is called temporary simply because it is not intended to be a court’s final decision on a custody matter.  Temporary custody is the court’s way of putting some kind of custody schedule in place until the parties can provide a full array of evidence for the court to digest in making a more permanent decision.  Temporary custody can be changed more easily than a permanent custody arrangement.  Temporary custody decisions are made much earlier in a case.  A temporary custody hearing typically lasts only one hour in Wake County. 

Temporary custody orders do not become permanent orders without a new order from a judge.  However, once a temporary custody order is put in place, it lasts until a date stated in the order, or until a judge makes a new custody ruling.  Many people are operating under a temporary custody order that was never intended to be permanent.  But, because neither party has gone back to court to get a permanent custody order, the temporary order still controls their rights.  Some clients obtain a series of temporary orders until a permanent order is put in place. 

Temporary custody may be more accurately called “interim” custody.  Temporary custody takes effect in the interim between the beginning of a custody case and a “permanent” custody decision.  As long as a temporary order is in effect, it is enforceable just like any other court order.  If a temporary custody order in is place in your case, be aware that either party can request a permanent custody hearing at almost any time.  A court can and often does make a different decision on permanent custody than it did on temporary custody. 

“Permanent” custody is not permanent.  There is nothing permanent about it.  In custody actions, “permanent” means “this is in effect until something substantial changes and one of the parties asks for a new custody arrangement.”  Permanent custody does not last forever.  Permanent custody orders can and frequently are changed (“modified” in legalese) by courts.  Some permanent custody orders are changed frequently. 

There are some important procedural and legal differences between permanent and temporary custody.  Permanent custody arrangements can only be changed if there has been a substantial change of circumstances in the parties’ lives AND that change has an impact on the child(ren).  Temporary custody orders can be changed without a substantial change in the parties’ lives.  Judges hear a lot more evidence in a permanent custody hearing than in a temporary custody hearing.  Whereas a temporary custody hearing typically lasts for one hour, a permanent custody hearing can take days or weeks in extreme cases.  Permanent custody hearings involve live testimony from witnesses.  Temporary custody hearings usually involve only sworn written statements (“affidavits”) from witnesses.  

From a client’s perspective, you can expect attorneys’ fees to be much higher to prepare for a permanent custody case than a temporary custody case.  It takes much more time for an attorney to put together several days’ worth of evidence than 30 minutes’ worth of evidence. 

One of the biggest issues that family lawyers run into is the client who believes that their permanent custody is in fact “permanent”.  The courts’ use of the word “permanent” justifiably leads people to believe that their custody is in fact set in stone.  On the other hand, some clients wrongly believe that their temporary custody order has no effect because it is not permanent.  However, temporary custody orders frequently last longer than some permanent orders if no one seeks a permanent order in that case. 

The bottom line on the these two types of custody is that they are each intended for different purposes.  Temporary custody is a “gap filler” arrangment intended to provide structure until a permanent custody decision is made.  Permanent custody is intended to as a longer term arrangment that lasts until something changes that necessitates a new arrangement. 

Hopefully, that sheds some light on your situation if you have a custody order in place.  And, if you do not yet have a custody order in place, it will help you understand the types of custody orders that you may receive in court.


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