Table of Contents:
- Pennsylvania Child Custody Laws for Temporary Custody
- Temporary Child Custody Laws in Illinois
- Mississippi Temporary Child Custody Laws
- Temporary Custody Laws in Oklahoma
- New York State Temporary Custody Laws
- Temporary Custody Laws in Iowa
A parent who has obtained information of a charge filed against the other parent can seek a temporary custody order or to modify an existing order. The court must consider whether either parent may harm the child or has been charged with an offense related to aggravated assault, terrorist threats, stalking, arson or contempt for violation of an order or agreement.
In deciding whether to award temporary custody or temporary visitation rights, the court must consider any risk posed by the defendant parent to the children and risk to the plaintiff parent. A defendant shall not be granted any custody or unsupervised visitation when it finds after a hearing that the defendant abused or poses a risk of abuse to the minor children of the parties, or has been convicted of interference with the custody of children within 2 years of the filing for a protective order.
When the court finds after a hearing under this chapter that the defendant has inflicted serious abuse upon the plaintiff or a child or poses a risk of abuse toward the plaintiff or a child, the court can award supervised visitation in a secure visitation facility or deny the defendant custodial access to a child.
Defendant with Custody
If a plaintiff seeks a temporary order and the defendant has at least some custody of the minor children that was granted by the court or by a written agreement of the parties, the court cannot disturb the custody unless it finds that the defendant is likely to abuse the children or remove them from the state before the court holds a hearing. In cases where the defendant has removed a minor child from the plaintiff, the court must order the return of the child to the plaintiff unless there is risk of harm to the child.
A Pennsylvania court that does not have jurisdiction to change child custody can issue a temporary order enforcing another state court's visitation schedule or the visitation provisions of child custody granted by another state that does not give a specific visitation schedule. The order is effective until the other court issues an order or the temporary order expires
In an emergency situation, out-of-state courts may temporarily award custody to someone other than the legal custodian of the child. Emergency situations are situations where the child is abused, neglected or abandoned. For example, if a child and parent are vacationing out of state and authorities observe that the parent is consistently intoxicated, authorities can go to the court and request the child be removed from the parent's custody. In emergency situations, the court must communicate with the Illinois court that granted the custody decree to determine how to best protect the child.
Temporary Custody During Divorce Proceedings
In Illinois, divorce judges may grant temporary custody to one parent while divorce proceedings are ongoing. Divorce can take several months or even years. If the parents cannot determine who makes medical or educational decisions for the child while the divorce is being finalized, the judge may give temporary custody to one parent.
Temporary Custody and Death or Incarceration
If the custodial parent dies or is incarcerated, Illinois law says custody automatically passes to the non-custodial parent. The custodial parent cannot appoint a different guardian to the child via a will. In cases of incarceration, the parent may make temporary arrangements for the child's care at the time of arrest but may not appoint the caretaker as temporary custodian of the child. A person other than the non-custodial parent who seeks custody of the child in these circumstances must go to court to request temporary or permanent custody of the child.
After parental separation, if one parent feels that he should retain custody because it serves the child's best interests or, specifically, because the child might suffer abuse or neglect at the hands of the other parent, the parent can petition the local Mississippi Family Court for temporary custody until a full evaluation of the permanent custody arrangements can take place. During this period, the custodial parent may petition the court for child support from the non-custodial parent. In deciding about the child's permanent custody, the court may order an evaluation in which a social worker will visit the child and interview her to try to evaluate the child's desires and best interests. Mississippi courts make every effort to include the child's wishes when moving from a temporary custody arrangement to a permanent custody arrangement.
In Case of Suspected Abuse or Neglect
If a report of suspected abuse or neglect has been filed regarding a child, the Mississippi Department of Human Services (DHS) will--if it deems the report creditable--privately interview the child, all members of the child's family and a non-family member who knows the child. If DHS believes that abuse or neglect has occurred, and it believes that harm may come to the child it he continues to live in his home, DHS may approach the Mississippi Youth Court to request that the court issue an order to take the child into temporary custody for 48 hours. The judge may wish to question whether the circumstances pose an immediate threat to the child and whether DHS has made reasonable efforts to maintain the child within his own home. The judge may also wish to question whether a reasonable alternative to custody exists, as taking a child into temporary custody should become DHS's last resort.
Moving to Permanent Custody
A Mississippi Youth Court judge may award temporary custody to another family member or person who plays a part in the child's life. The judge will expect DHS staff to make every effort to find a permanent custody arrangement for the child as soon as possible if it is decided that the child cannot return to his family. Mississippi law demands that DHS make every effort to restore children to their families in cases where the DHS removed the children. The DHS, according to Mississippi law, must then provide services to the child and her family to ensure that the situation will not endanger the child's health and safety.
In Oklahoma, temporary custody is the child's living arrangements as agreed by the parents during their initial separation and divorce proceedings. The temporary custody agreement may not end up being the final determination of custody. This means that if one parent agrees that the other can have temporary custody, he is not barred from later seeking permanent custody. A court will determine custody based on "the best interests of the child" standard and has the right to make any necessary changes to the temporary custody arrangement.
Oklahoma law has emergency removal procedures in place, where there are allegations of child abuse or neglect. Oklahoma considers abuse any instance of emotional, physical or sexual abuse. Neglect can be the failure to provide proper shelter, food and overall care, as well as a parent's inappropriate conduct, like drug use or illicit sex in front of the child.
Where there are any such allegations, Oklahoma police or a child welfare department will immediately remove the child from home. An emergency temporary custody case will then be started to appoint a temporary guardian and determine whether a parent's custodial rights should be permanently terminated.
Emergency Temporary Custody
If the Oklahoma Department of Social Services (DSS) removes a child from her home, a court must appoint a temporary guardian. DSS initiates the emergency temporary custody case and a temporary guardian, who is pre-registered with DSS and meets the required qualifications, cares for the child. During the hearing, the custodial parent has the right to be heard on any allegations and show that she is still a fit parent. A judge will then make a determination based on what is in the best interests of the child. If the parent is found fit, the child will be returned. If not, the judge will terminate the parent's rights and make other arrangements for the child.
In New York, temporary custody is also referred to as "pendente lite." This alternate term for custody translates to "pending the trail." In federal courts or the New York Supreme courts, the latter term is usually used when discussing temporary custody. In New York family courts, the former term is used. In New York, this custody order is issued by the court after the case is filed. However, the court issues the order before the case goes to trial. When the outcome of the case is determined, this temporary order is vacated. A final order of custody is issued in its place.
Factors in Determining Custody
There are several factors that may determine which parent or legal guardian receives temporary custody before a case goes to trial in New York. The following list is not exhaustive of the different factors, but they are some of the most common factors that help determine custody.
The age of the parents helps determine custody---if one parent is much older and more mature than the second parent, he or she will be more likely to gain temporary custody. The alcohol and drug use of the parents are also considered. If one parent has a drug problem, he or she most likely will not receive temporary custody. The availability and finances of the parents are also considered. The court typically wants the child to go with a parent or guardian that has the means and the time to care for the child.
When determining temporary custody in New York, the court will sometimes ask the opinions of the parents. If either parent agree that one parent should receive temporary custody before the case goes to trial, the court may honor that wish. For example, one parent may be unusually busy at work for the next couple of months and be unable to care for the children as well as the other parent can.
Best Interests of the Child
Iowa temporary custody laws are founded on the doctrine of the best interests of the child. The health and welfare of the child trumps the goals and objectives of the parents when determining temporary custody in Iowa.
One factor an Iowa court considers in determining the best interests of a child for the purposes of temporary custody is which parent historically was the primary caretaker of the child. The court also considers the physical and mental health of the parents and the child. Other factors include which parent maintains a residence most suitable for a child and which parent is likely to encourage contact between the child and the noncustodial parent.
Motion for Temporary Custody
Temporary custody laws in Iowa permit either party to a divorce case the ability to file a motion for temporary custody. In fact, typically one or even both parties to a divorce case file a motion to obtain a series of temporary orders to remain in force during divorce proceedings. These include temporary custody, temporary visitation and temporary support.
In the motion, the parent seeking temporary custody must establish why placing the child in his custody will promote the best interests of the child.
An element of temporary custody laws in Iowa is the requirement to develop a parenting time or visitation plan. Generally speaking, the parent not awarded temporary custody of a child during divorce or other proceedings legally is entitled to parenting time or visitation. Iowa law recommends that the noncustodial parent receive reasonable and regular parenting time with the child. The goal of a temporary custody order and the companion parenting-time plan is to ensure that the child is able to develop meaningful relationships with both parents.
Seeking temporary child custody in Iowa is challenging. The procedures and applicable laws are complex. Consider engaging the services of a qualified Iowa family law attorney to represent you in your case. The Iowa State Bar Association maintains a directory of of attorneys in different areas of practice. Contact the Iowa State Bar Association at:
Iowa State Bar Association 625 E. Court Ave. Des Moines, IA 50309 515-243-3179 iabar.net