Legal Ease by Shane Givens
Feb. 28, 2011

What is temporary custody?

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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 return custody. If my mother only has 'temporary' custody, what's the problem?”

Many times, the legal definition of a word and the common-sense definition are not the same. The definition of “temporary custody” is no different. Common sense tells us any form of custody preceded by the word “temporary” would mean 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, well, 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. In fact, when a parent loses custody 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 simply because she is the child's mother. In these unfortunate cases, the parent then 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, 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 a parent will transfer “temporary” custody 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 anyone faced with losing custody, or who is voluntarily transferring custody, to have an attorney review the proposed custody transfer order and have the attorney 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. The answers to most legal problems rely on specific facts of a particular situation; therefore, it is very important to see a lawyer when these situations arise. 

Please e-mail questions for future columns to givenslaw@tds.net.