by Zachary J. Schilawski

There are two types of child custody orders – temporary orders and permanent orders. Both orders are enforceable by the court and set out how custody of a child is allocated between the parents (or non-parents, if the parents do not have custody). The “temporary” and “permanent” labels associated with each order are somewhat misleading because custody orders are never really “permanent.” Custody orders are always modifiable based upon a substantial change in circumstances.

Temporary Orders

Since the legal process in divorce proceedings can been drawn out over a number of months, temporary custody orders are often useful as a place holder to delineate how parents will handle shared parenting duties while the custody lawsuit is pending. The court can grant these temporary orders in its discretion, and the terms are legally binding. While the orders are intended to be temporary, there is no requirement that they provide a specific end date at which point they will expire or lose their effect. Temporary orders are superseded and replaced by a permanent custody order at a later date when the issues are finally resolved.

However, a temporary order can convert into a permanent order if neither party seeks a permanent order within a “reasonable” amount of time after the court enters the temporary order. Additionally, the temporary order can end up having a long-lasting impact if the court decides to use it as a template or framework for establishing the parental rights and responsibilities ultimately granted in the permanent order.

Permanent Orders

Once entered, permanent orders supersede and replace any preexisting temporary custody order. The significant difference between temporary and permanent orders is that temporary custody orders may be modified at any time without finding there has been a substantial change in circumstances. On the other hand, permanent custody orders may only be modified if the court determines that there has been a substantial change in circumstances since the order was entered. The court has significant discretion to determine what constitutes a substantial change in circumstances. Usually, there must be a showing of major change including the relocation of a parent, the remarriage of a parent, or the change in employment of a parent allowing more or less flexible work hours. And, the evidence must show that the substantial change in circumstances affects the welfare of the child. As a result, permanent custody orders are much more difficult to modify than temporary orders even though they are never truly “permanent.”