Am Jur 2d - Divorce and Separation § 857

IV. Child Custody and Support; Visitation Rights, A. Child Custody; Visitation Rights, 3. Types of Custody, § 857 - Temporary custody

During the pendency of an action for a divorce or separation the court may enter an order for the temporary custody of the minor children of the parties.[1] The disposition of the custody of a child pending trial is a matter within the sound discretion of the trial court.[2] The issue of temporary custody need not be raised in a complaint or cross-complaint; it may be raised by a motion with supporting affidavits filed in the divorce action.[3] On an application for custody pending the trial of a divorce action, it is not necessary that the children be brought into court.[4] Where the trial court grants temporary custody of a minor child to a third party, such party does not become a party to the divorce action.[5]

Practice Tip:

If a natural parent intends to voluntarily transfer temporary custody of a child to a third person, then the document effecting the transfer should expressly provide that it is the intention of the parent to temporarily transfer custody to the third person.[6]

Ordinarily, a temporary child custody order is interlocutory and does not affect any substantial right which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on the merits.[7] An order for temporary custody of a child, entered before the trial of an action for a divorce or separation, expires with the entry of a final decree granting a divorce or separation,[8] or when the petition for a divorce is denied[9] or is dismissed by leave of court.[10]

Temporary orders may be entered at other times, as where the court grants a divorce but is unable to make a final determination of the issue of custody.[11] The court may also make a probationary arrangement with the expectation that the application for a final award will be heard at a later date.[12] Similarly, the court may enter an order for temporary custody when the plaintiff takes a voluntary nonsuit.[13] However, the court, when granting a divorce, should not make a mere temporary order for custody when this can be avoided, as a temporary order in such a case is apt to cause hardship, unhappiness, and instability in the lives of the parents and children.[14]

The court may make a temporary change of custody when considering an application to change it permanently.[15] An appellate court, in the exercise of its appellate jurisdiction, has the power to provide for the temporary custody of a child until the determination of the appeal,[16] and where the appellate court remands the case for further consideration it may continue in force an order for temporary custody and support.[17]

Occasionally, the courts use the term "temporary custody" when they refer to an arrangement whereby the parent who does not have principal custody is given the right to have the child with him or her for a few hours, days, or weeks.[18] Generally, however, the possession of a child for such a comparatively short period of time is regarded as a "visitation,"[19] while possession for a period of time such as a month or two, or during the summer months, is termed "divided custody."[20]

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1   Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942) ; Gonzalez-Fantony v. Fantony, 31 N.J. Super. 14, 105 A.2d 909 (App. Div. 1954) .
 "Temporary custody orders" establish a party's right to custody of a child pending the resolution of a claim for permanent custody, i.e., pending the issuance of a permanent custody order. Regan v. Smith, 131 N.C. App. 851, 509 S.E.2d 452 (1998) .

2   Harbuck v. Harbuck, 210 Ga. 220, 78 S.E.2d 508 (1953) ; Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924) .

3   Gustafson v. Gustafson, 272 N.C. 452, 158 S.E.2d 619 (1968) .
 The Uniform Marriage and Divorce Act contains a similar provision which states that a party to a custody proceeding may move for a temporary custody order; if there is no objection, the order may be issued solely on the basis of affidavits; otherwise, a hearing is required. Unif. Marriage and Divorce Act § 410 (1970).

4   Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942) .

5   Graham v. Graham, 219 Ga. 193, 132 S.E.2d 66 (1963) (holding, therefore, that the third party was not entitled to appeal from an order revoking the award of temporary custody).

6   In re Visitation and Custody of Senturi N.S.V., 221 W. Va. 159, 652 S.E.2d 490 (2007) .

7   Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999) .

8   Whitbeck v. Whitbeck, 170 La. 418, 127 So. 888 (1930) ; Ex parte Brown, 382 S.W.2d 97 (Tex. 1964) .

9   Graham v. Graham, 219 Ga. 193, 132 S.E.2d 66 (1963) .

10   Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779 (1918) .
 If a proceeding for dissolution of marriage or legal separation is dismissed, any temporary custody order is vacated unless a parent or the child's custodian moves that the proceeding continue as a custody proceeding and that the court finds, after a hearing, that the circumstances of the parents and the best interest of the child requires that a custody decree be issued. Unif. Marriage and Divorce Act § 403(b) (1970).

11   Scheffers v. Scheffers, 242 Iowa 563, 47 N.W.2d 157 (1951) ; Dickerson v. Dickerson, 245 Miss. 370, 148 So. 2d 510 (1963) .

12   McLay v. McLay, 354 Mich. 19, 91 N.W.2d 824 (1958) .

13   Ex parte Brown, 382 S.W.2d 97 (Tex. 1964) .

14   Killip v. Killip, 156 Neb. 573, 57 N.W.2d 147 (1953) .

15   McLay v. McLay, 354 Mich. 19, 91 N.W.2d 824 (1958) .
 Where, pending the hearing of a motion for change of custody, the court enters a temporary order changing custody, the order does not have the force and effect of res judicata. Foster v. Foster, 300 S.W.2d 857 (Mo. Ct. App. 1957) .

16   Goetz v. Goetz, 181 Kan. 128, 309 P.2d 655 (1957) .

17   Edgar v. Edgar, 323 Mich. 351, 35 N.W.2d 181 (1948) .

18   Wells v. Wells, 330 Mich. 448, 47 N.W.2d 687 (1951) ; McGetrick v. McGetrick, 204 Or. 645, 284 P.2d 352 (1955) .

19   §§ 891 et seq.

20   § 859 .

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