Temporary Custody Agreement Defined
A temporary custody agreement can be made as part of a family law suit pending final order. The agreement will set out how a family is going to divide up their time with the children while the suit is pending.
During a divorce or other family law proceeding, parents may want to establish temporary provisions for the possession and care of their children. A temporary custody agreement is a written , legally binding agreement made between the parents of a child that outlines in detail how custody of the child will be handled until a final order is determined by a judge. Temporary custody agreements are considered purely voluntary since both parents agree to the terms and are not issued by the court in accordance with statutory provisions and regulations. Although a temporary custody agreement is not ordered by the court, it has the same effect as an order and can be enforced by the court should one of the parents disobey its terms and conditions.
Texas Legal Requirements
The next logical question is : Are there any "legal requirements" in Texas for setting up a temporary custody agreement? The answer is yes. You do not have to go through the traditional process of having the court place the consent order on the record, but you do need a signed temporary agreed order that contains the following: -Identification of the parties -Identification of the child -A list of orders to be followed by both parties -A waiver of service of process, and -A find-it-now provision, which requires a school district to notify the other parent of any employee who may be registered in the database. Whether or not the court sees your temporary order, the final divorce decree must contain a "finding that the temporary agreed order was entered into the best interest of the child" as well as a statement that "it remains in the best interest of the child to continue to have possessive of that child." By statute, a temporary agreed order will terminate on the date of a final divorce. It is important to note that the final decree does NOT have to be entered into by the parties if the court finds that it is in the best interest of the child. The court has full authority to enter orders regarding conservatorship and possession of the child regardless of whether the parties agree to the entry of such a decree. If the parties reach an agreement prior to final trial, then each party is responsible for filing a motion with the court requesting that the court accept the temporary agreed order into the record. Although the court has the discretion to deny the temporary agreed order, judges do tend to be open to receiving them and, as long as they are in the best interest of the child, will likely approve them. In the event that the parties cannot come to an agreed order, the court will enter temporary orders after a hearing where evidence is presented to the court as to possessive of the child.
Drafting a Temporary Custody Agreement
Creating a Texas Temporary Custody Agreement
Before the final trial or mediation, parents may agree on an in-between period of temporary custody for carrying out a current plan that may have been informally agreed upon. Once an agreement is reached, those parents can then draft a written temporary custody agreement that details what they have agreed upon.
This temporary custody agreement should include:
The order of possession: Parents will need to determine when one parent will have possession and access to the child, as well as the other parent’s access to the child, and at what times this will occur.
The rights and responsibilities of each parent: Parents will also need to determine how responsibility for the child – and the child’s education, medical care, school activities and extracurricular activities – will be addressed. This should also address authority to make decisions for the child.
Transportation: parents should discuss where the child will be dropped off or picked up after periods of possession, and who will be responsible for this.
Communications: how and when the parents will communicate during the time the child is possessing the child.
Telephone, texting and video chat communications between parents and the child.
Parenting time with each child separately, if applicable.
If the parents cannot come to an agreement about certain issues during the period of temporary possession, the Temporary Hearing may be scheduled in court which is like the final hearing before the judge to determine such things as, who will have the exclusive right to designate the primary residence of the child, where the possession and access schedule will be, and what the orders will be until a final hearing takes place.
The Temporary Orders usually also include the following:
Possession and access schedule for child, including:
Holidays
Summer possession
Spring Break
Holidays in even-numbered years (Thanksgiving, Christmas, New Year’s)
These temporary custody orders will last until the final hearing. Therefore, it is important for parents to be certain that all issues are adequately addressed so that a final possession schedule, as well as all issues concerning their children are appropriately addressed in the manner they envision. In the interest of the child, the judge will need to make the final determination as to the child’s home environment.
Parental Rights and Timesharing
Parenting time, or visitation time, is typically divided under a temporary custody agreement, although not always evenly. The need for a temporary custody arrangement is often when parents are divorcing, but they have not yet finalized their divorce terms. Texas allows temporary custody arrangements while a divorce is ongoing, but these terms are expected to hold until a final order is made.
Because it’s normally granted in anticipation of a divorce decree, a temporary custody arrangement might rule only on primary custody of the children. One parent has sole primary custody, while the other has limited visitation rights, such as weekend visits or a designated time on Tuesdays and Thursdays.
Alternatively, parents may share equally parenting time, with weekdays divided or weekends being alternated while school and extracurricular activities are taken into consideration. The children may live mainly with one parent on a permanent basis, but there are visitation terms that grant not only the other parent, but also grandparents and great-grandparents, rights to visit the children.
Parents can negotiate a temporary custody arrangement or allow a judge to determine the best outcome for their children.
Amending a Temporary Custody Agreement
The Texas Family Code section 156.001 provides a specific procedure (Request for Order to Modify Temporary Order) for modifying a temporary order issued under the Texas Family Code and a special timeline within which the child-related provisions of a temporary order can be modified. Provisions of a temporary order that are not child-related can be modified under the general procedures contained in section 156.001.
Pursuant to Texas Family Code section 156.001(c), the court may modify an order that provides for conservatorship, possession, physical possession, or access to a child or for child support if the circumstances of the child or the person affected by the order have materially and substantially changed since the date of the order’s rendition and the modification would be in the best interest of the child .
Likewise, if a temporary order contains child-related provisions and the applicant seeks to modify the child-related provisions of the temporary order, the application must be verified and must allege that continuance of the temporary provisions is unreasonably burdensome due to a material or substantial change in the circumstances of the child or those persons affected by the child-related provisions since the earlier order was rendered and the requested modification would be in the child’s best interest.
Temporary Custody Agreement vs. Permanent Custody
In Texas, when a case is filed seeking Child Protective Services to permanently remove a child from a parent, there is often a temporary order in place that says that the child should remain with CPS until there is a final, permanent order in the case. The standard for removing a child from a parent temporarily while the case is pending differs from the standard for removing the child permanently. For a permanent order, the standard is "clear and convincing evidence" – is there clear and convincing evidence that the child would be "at risk" if they remained with the parent? But, the standard for a temporary order is a lower standard, called "preponderance of the evidence" – is there a "preponderance" of evidence that the child would be "at risk" if they remain with the parent? (Legally, this is the same thing as more than a 50% chance that the child will be at risk). Another way to think of this is like swinging on a swing set in the playground. More than a 50% chance you will fall off is where you should stop.
Additionally, it is important to note that, although the standard of proof in a temporary order is lower (preponderance instead of clear and convincing), the temporary order is just that – temporary, and that same standard (preponderance of the evidence) is what will be used to determine whether the child is permanently removed from the parent. And, the temporary orders starting out a case of CPS involvement can absolutely impact the final outcome. A provision of a temporary order may make it easier for CPS to permanently remove the child, or it could help work towards reconciling the family.
Of course, if the case is not one where a parent is fighting to keep their child and these are understood to be the standards for temporary orders, a temporary custody agreement can be entered into that says: child will remain with CPS until further order of the court, or until trial, or until such time as the parties agree on a different placement for the child.
Frequently Asked Questions About Temporary Custody Agreements
While temporary custody agreements in Texas are designed to address issues of child custody in a manner that reduces stress and conflict between the parents, common challenges may arise. One issue is the potential for disputes over temporary visitation rights. A failure to adhere to the terms of the temporary order can result in adverse court findings. For example, in a situation where the parents are co-parents, but one parent has to travel frequently on business, disputes regarding the travel schedule may arise. The non-custodial parent may object to the travel because of the hassle of rearranging to meet the visitation schedule. If the parents are able to come to an agreement, there may be virtually no impact on the minor child. If there is no agreement, however, the parents may rely on their temporary visitation rights as both parents are equally important in custodial arrangements. Any violations of these rights, including travel restrictions, could result in a finding of contempt against the other parent. Another issue that may arise is in the interpretation of the temporary order, which might provide visitation by the non-custodial parent as long as the parent is in the vicinity of the state of residence. Again, air travel might be a point of conflict, as the non-custodial parent might want to extend this form of visitation to foreign travel. Following the resolution of the divorce, both parents will have permanent custody orders establishing visitation rights. When a temporary custody order is violated, a violation of the order may adversely impact any further pursuit of legal rights in family court.
The Importance of Speaking with an Attorney
Facing Legal Matters without the Guidance of an Attorney can be a Recipe for Disaster. If you are interested in learning more about Texas Temporary Custody Agreements, or have been recently sued for Custody of your Child, you should take seriously the need to hire an attorney. Navigating the courts self represented is often times overwhelming and confusing , leading to greater stress on all family members involved. To ensure that your rights and the best interest of your child are protected it is strongly recommended to seek out a qualified family law Attorney. If you are interested in hiring an attorney and do not know where to begin, you can also contact the local Texas Bar Association in your county to receive referrals.