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What is “Temporary Custody?”

Feb 23

 I received this question from a reader recently: “The juvenile court gave my mother temporary custody of my child because of my drug addiction. I have turned my life around now, have a job, a stable place to live, and have been drug-free for two years, but the court will not give me custody back. If my mother only has “temporary” custody, what’s the problem?”

 Many times (if not most times) the legal definition of a word and the common sense definition of a word are not the same. The definition of “temporary custody” is no different. Common sense would tell us that any form of custody that was preceded by the word “temporary” would mean just what it sounds like – not permanent. However, a temporary custody transfer can be, and often is, the legal equivalent of a permanent custody transfer.

 Under the law, an order from the court that is final in nature, in other words, that does assume a hearing on some future date, can be considered a final order. A final order is just that – final. So, if the court’s last word on the subject was to grant “temporary” custody of a child to someone, then the custody transfer is many times legally interpreted as a permanent transfer.

 This can be devastating to a parent who has lost custody to a non-parent when they try to regain custody at a later date. In fact, when a parent loses custody of a child to another person, they also potentially lose what is called their “prima facie” right to custody. “Prima facie” is a legal term that is literally translated to mean “presumed fact.” In cases dealing with custody, a parent is legally said to have a “prima facie” right to custody, or in other words, a parent’s right to have custody over anyone else is a presumed fact that cannot be easily overturned.

 If a parent loses her “prima facie” or presumed custody right, even under the “temporary” custody situation we are discussing, she may also lose the legal presumption that the child is better off with her, just because she is the child’s mother. In these unfortunate cases, the parent now has to prove that the person with “temporary” custody is unfit. The fact that the parent may be in the best shape of her life, totally drug free, with the perfect job, and the perfect place to live, may carry little legal significance.

 This principal is also true for situations where a parent voluntarily transfers “temporary” custody to someone. In many situations I have dealt with, a parent will transfer “temporary” custody of a child to a relative only to find that when he wants custody back, he can’t get it. The solution for this problem is in the wording of the order transferring custody. It is extremely important, therefore, that if you are faced with losing custody, or are voluntarily transferring custody, that you have an attorney review the proposed custody transfer order and have him or her recommend to the court the correct wording in order to avoid this anything-but-temporary custody problem.

 This column is intended for general information purposes only. It is not intended, nor should it be construed as personal legal advice. The answers to most legal problems rely on the specific facts of your situation; therefore, it is very important that you personally see a lawyer when these situations arise.