• When is a temporary child custody order really a temporary child custody order?

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    G.S. 50-13.5 allows a court to enter a temporary custody order whenever the court deems it appropriate. The ability to enter a temporary order gives the court the power to address immediate needs of families going through the litigation process. There is no limit on the number of temporary orders that can be entered in a case and temporary orders can be changed at any time, by any judge, for any reason.

    While temporary orders are an important tool for courts, it is the public policy of the State that custody orders should be made permanent as soon as possible “to avoid the turmoil and insecurity that children face from the constant litigation of their custody status.” Simmons v. Arriola, 160 NC App 671 (2003).

    Sometimes it is not clear from the language in an order whether it is temporary or final. Sometimes orders designated as temporary clearly are intended to stay in effect for a long time. And sometimes orders clearly temporary when entered stay in effect so long the custody arrangement seems much more permanent than temporary.

    Why does it matter whether an order is temporary or final?

    It is important to know whether a custody order is temporary or ‘permanent’ for at least three reasons:

    • First, only a final order can be appealed to the court of appeals.  An appeal of a temporary custody order is an inappropriate interlocutory appeal, see File v. File, 195 NC App 562 (2009). However, the court of appeals can decide to grant cert. when there are special circumstances. See Smith v. Barbour, 195 NC App 244 (2009).
    • Second, a temporary order can be modified by the trial court for any reason, Smith v. Barbour, but a ‘permanent’ order only can be modified based on a showing of a substantial change in circumstances affecting the welfare of the child. GS 50-13.7; Simmons v. Arriola, 160 NC App 671 (2003).
    • Third, a party is can take a voluntary dismissal of a custody claim after a temporary custody order is entered but not after a final custody order is entered. Massey v. Massey, 121 NC App 263 (1996). A voluntary dismissal following entry of a temporary order vacates the temporary order. See Collins v. Collins, 18 NC App 45 (1973)(party cannot be held in contempt of temporary order after case is dismissed by party); Doe v. Duke University, 118 NC App 406 (1995)(voluntary dismissals in civil cases “carries down with it previous rulings and orders in the case).

    In addition, the court of appeals has indicated that a court has broader authority in a temporary order than in a final order. In Jones v. Patience, 121 NC App 434 (1996), the court held that while the court has the authority to order psychological assessment and treatment of the parties and child as part of a temporary order, the court does not have authority to include similar provisions in a final determination. But see Maxwell v. Maxwell, 212 NC App 614 (2011)(court had authority to order father’s mental health evaluation as part of a final custody order pursuant to the trial court’s “broad discretion in child custody cases”).

    How do we know if it’s really temporary?

    The court of appeals has stated numerous times that the temporary or ‘permanent’ nature of an order is not determined by its caption. See e.g. Simmons v. Arriola, 160 NC App 671 (2003); Lamond v. Mahoney, 159 NC App 400 (2003). Rather, the determination is made by examining the content of the order.

    Although there is no absolute test for determining whether a custody order is final or temporary, LaValley v. LaValley, 151 NC App 290 (2002), the court of appeals has held that an order is temporary if:

    An order is temporary or final; it cannot be both. In Smith v. Barbour, 195 NC App 244 (2009), the court held that father should be awarded primary physical custody but determined mother’s visitation schedule would be set after she completed an evaluation. Rejecting the argument that primary custody was final but visitation was temporary, the court held that any order that leaves issues such as visitation unresolved is a temporary order in all respects.

    Will it stay temporary forever?

    Even if an order is temporary when entered, the court of appeals has held that it will ‘convert’ to a permanent order if neither party seeks a final judgment within a reasonable time after entry of the temporary order. LaValley v. LaValley (temporary order converts because it “is not designed to remain in effect for extensive periods of time or indefinitely.”).

    Whether a time period is ‘reasonable’ must be determined on a case-by-case basis. Generally speaking, a temporary order will convert to a final order at some time before it has been in effect one full year. Compare File v. File (five months was reasonably brief so temporary order did not convert); Brewer v. Brewer, (one year was not reasonably brief and order did convert); LaValley (23 months was not reasonably brief).

    However, the court of appeals has held that orders continued to be temporary even after periods of time in excess of one year when the parties had been negotiating custody or engaging in the litigation process. See Senner v. Senner, 161 NC App 78 (2003)(20 months was reasonable were parties were negotiating a new custody arrangement which eventually broke down) and Anderson v. Lackey, 163 NC App 246 (2004)(20 months was reasonably brief where original order contained a specific reconvening time and there were intervening court hearings before that specified date).


    Cheryl Howell is a Professor of Public Law and Government at the School of Government specializing in family law.

    9 thoughts on “When is a temporary child custody order really a temporary child custody order?”

    • Angela says:

      Thanks this information is helpful. Are temporary child support orders treated in a similiar fashion? Are there any specific cases that state a temporary child support order becomes permanent after a year.

      • howell says:

        I have not been able to find a case where the appellate court has ruled that a temporary child support order converted to a permanent child support order. However, LaValley, 151 NC App 290 (2002), indicated that the support part of the order at issue in that case also would need a showing of changed circumstances before modification. And, in Sarno v. Sarno, 762 SE2d 371 (2014), the court of appeals discussed the analysis for determining whether a support order is temporary or permanent and stated that the rules used to determine whether a custody order is temporary or permanent “logically apply to the child support context as well.”

    • Matt says:

      If a temporary custody agreement is in place and both parents missed the court date for the final custody hearing what happens with the temporary custody agreement?

    • Judy says:

      Can a child speak in a temporary custody hearing?
      Can the other parent that has the children in NC have family or friends for witnesses ?

    • Scottie says:

      We have had temporary custody order signed by a judge of our grandchild for 2 1/2 years. The mother now wants custody back. Child has always lived with us since birth. At time of custody she was deemed unfit. She is doing a little better but we are not willing to give up custody. What are our chances of keeping custody of our grandchild?

      • Darlene Cheaney says:

        Dear Scottie,
        I just noticed your post. Did you ever get any answer on your custody matter. My husband and I are going through the same thing. The only difference is we’ve had our twin granddaughters since birth in our home and now they are 7 yrs old. We lost our custody last November because our court order said “without prejudice”. Please let us know if you have heard of any cases won with these circumstances. We return to court tomorrow. Thank you!

    • Kimberly cartrette says:

      The father was granted temporary custody of my son do i the mother still have custody and rights?

    • Stephanie says:

      My mom got temporary custody of us and we go back to court in April for the final hearing , what does that mean ?

    • Natalie says:

      My ex husband’s attorney is trying to use our temporary custody order from April of 2013 to hold me in contempt for not paying medical bills. Our final order was in August of 2013 and stated all I had to pay was child support. In the temporary we agreed that neither would pay child support. Do temporary custody agreements override final custody order?

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