Could your temporary custody order become permanent simply by the passage of time?

Depending on the county and circumstances, a temporary order may be entered in some custody cases to address matters until a permanent custody hearing can be scheduled or a permanent order is otherwise entered. However, it can often take several months from the time a claim for child custody is initiated in North Carolina for a permanent custody hearing to be calendared. This interval can have a significant impact on temporary orders because a temporary custody order may automatically convert into a permanent order if the matter lingers and neither party actively pursues calendaring of the matter for a hearing within a “reasonable” time.

The conversion of a temporary custody order to a permanent custody order is significant for primarily two reasons: 1) temporary orders are not appealable, and 2) the standard for determining custody is different depending on whether the current order is temporary or permanent. If the order is not appealable, it can not be reconsidered by a higher court for review or possible reversal. However, more pertinent to most people is is the change in the standard for determining custody.

Permanent child custody or visitation orders may not be modified unless the trial court finds there has been a substantial change in circumstances affecting the welfare of the child. If there has been a substantial change in circumstances, the court may modify the order based on the best interests of the child. On the other hand, temporary orders may be modified by proceeding directly to the best interests analysis. The additional step of finding a substantial change in circumstances is a burden that can often be difficult to overcome, particularly if the temporary order became permanent by the passage of time. In addition, temporary orders are considered non-prejudicial to either party. In other words, the parties can litigate the issues at a later time, as though the terms of the temporary order had not happened. This is not the case with permanent orders; generally only events occurring since the entry of the permanent order will be considered. Beware that even a non-prejudicial temporary order can become the unofficial status quo, and, though not binding upon the court, a relevant fact for a court to consider.

Unfortunately, there is no bright-line time frame in which a temporary order converts to a permanent order. In one case, the court held that just over a year is not a reasonable amount of time between the entry of a temporary order and setting a date for an additional hearing on the matter; however in another, the court held that twenty months was reasonable. When deciding whether action is taken within a reasonable period of time, the courts will consider on a case-by-case basis all of the facts and circumstances, such as if there were unresolved issues between the parties, if the parties continued to negotiate, and other extenuating circumstances.

Many parties have arrived in court for their permanent custody hearing only to find out that their temporary order converted to a permanent order. If you have a temporary custody order, be sure to consult with an attorney to discuss the implications this operation of law could have on your case.