It means that the child custody order is a temporary, as opposed to a permanent and final, order of the court.
Why would a court enter a temporary child custody order? For obvious reasons and necessity. If to parents are fighting over custody of a child and what the ultimate child custody and parent time order will be, it will likely take a year or two before that case goes to trial. The child needs to be taken care of during that period (known as the pendente lite period in the litigation; pendent lite literally means “while the litigation is pending”), and so the court will issue temporary orders as to how much time the child spends with each parent until the final child custody order is made.
These temporary orders are not to be intended have a “prejudicial” effect on the outcome of the final child custody award (but that is rarely the case).
“Prejudicial” in a legal sense means a preconceived opinion that is not based on reason or actual experience, harm or injury that results or may result from some action or judgment. As you can imagine, if the existence or purported success of a temporary order was cited by the court as evidence that the temporary order must become the permanent order of the court, then the so-called “temporary” order is anything but. To assert that a temporary custody order has proven itself to be better than any other possible custody order on the grounds that it has been in place to the exclusion of any other possible custody arrangement would be an example of giving the temporary order prejudicial impact and effect.
And now to address the elephant in the room:
Courts routinely claim that temporary child custody orders cannot and will not have a prejudicial effect on the final child custody order. That is simply not true.
Now clearly, if a court found the temporary orders to be disastrous for the child, and the court will need to impose a different permanent custody order for the sake of the child’s welfare and the sake of the court’s legitimacy.
But what about a temporary order that isn’t best for the child but isn’t manifestly catastrophic? How can anyone believe a judge who says that he or she isn’t looking to the track record of that sub-optimal, so-called temporary order when determining what the permanent child custody order should be?
It takes an extremely intellectually disciplined judge to disregard that temporary orders track record as evidence in favor of that temporary custody arrangement.
Instead, however, most judges will take the path of least resistance and adopt as the permanent order a temporary order that hasn’t been a patent failure, and then cite in support of that decision the fact that the parent opposing that schedule has “failed to produce sufficient evidence” to rebut the proposition that the so-called temporary order is in the best interest of the child. Judges will deny that they do this, but it’s obvious that they do. Do you see the problem with this approach?
When the court:
- imposes one and only one custody schedule during the pendente lite phase of the case,
- claims that this one and only one schedule will not have a prejudicial effect on the ultimate permanent child custody order,
- refuses to implement any other proposed schedule to test and evaluate it against the other schedule,
- bars the other parent from implementing his/her proposed custody schedule in any kind of real life/real-time setting during the pendente lite phase,
- then cites to the other parent having failed to produce sufficient fact(s) that his/her proposed custody schedule better serves the best interest of the child,
- and cites to the track record of the so-called non-prejudicial temporary order as fact(s) in support of the argument for imposing it as a permanent order,
the so-called non-prejudicial temporary order is anything but.
Utah Family Law, LC | divorceutah.com | 801-466-9277