It’s a poorly kept secret that the United States Court System is not exactly what you would call expeditious. Some civil lawsuits can drag on for 5-10 years. For what we are focused on here which is family law, the very nature of subject matter makes it important that some disputes need to be put in front of a judge as soon as possible. Missouri Courts have recognized this particular need for speed and consequently allow litigants in divorce or child custody disputes to motion the court for temporary child custody. If you are being unfairly kept from your children, you need an attorney experienced in temporary custody and dedicated to helping men through divorce and other family law matters.
What is Temporary Child Custody?
Temporary child custody describes a court order which dictates who a child will reside with (physical custody), and which parent will have the decision-making authority regarding that child (legal custody), during the pendency of the divorce or child custody litigation. A temporary order of child custody is typically needed when parents cannot come to terms on a reasonable child custody arrangement during the proceedings. The purpose of the order is to place the child in the situation that is in that child’s best interests. Temporary orders of custody may be appropriate in divorces, establishment of paternity cases, modifications to existing custody agreements, and emergency situations.
Missouri Courts hold that it is in the best interests of most children to have a meaningful relationship with each parent, and to spend adequate time with each parent. Let’s consider a common situation, and let’s say the wife files for divorce and asks the husband to move out of the marital home so she can “think about things”….or….”work on herself.” (BTW, fellas never move out of the house if she asks you to.) Then the wife starts dictating when the husband can spend time with his children and limits this visitation to an unfair and unproportional amount of time. Assuming this arrangement is not in the best interests of the children involved because the husband has done something to make it that way, then the husband can file a motion for temporary custody with the court.
Missouri Revised Statute 452.380 provides that any party involved in a custody dispute may file a motion for an order of temporary custody. So this means a mother or father is allowed to motion the court for temporary custody, as well as potentially stepparents or grandparents. With the motion for temporary custody, an affidavit describing the rationale as to why the motion should be granted, should be filed as well. This notarized document may state reasons such as one parent is withholding visitation, parental alienation is taking place, or it is dangerous for the children to be unsupervised with one parent. Part 1 of the statute explains that a motion for temporary custody may be granted following a hearing, or in some circumstances simply on the basis of the affidavits if the other party does not object. Part 2 of the statute dictates that if the main child custody or divorce proceeding is dismissed, then any temporary child custody orders are no longer valid or enforceable.
In Cass County, the 17th Judicial Circuit Local Court Rules mandate that all parties to a divorce, legal separation, paternity action, or modification of a custody order, where there are contested matters involving custody or visitation, both parties must complete two hours of mediation. Also stated in Missouri Supreme Court Rules 88.02 – 88.08. A mediator in family law dispute is usually an experienced family law attorney, often with a busy schedule. Both parents must coordinate their schedules with the mediator to make an appointment for a mediation session, a process that can takes several weeks to several months depending on the participants availability. For emergency situations where the well-being of a child may be in jeopardy, there is a way to get around the requirement for mediation…unfortunately it has its drawbacks.
If a party believes their child (or they themselves) is in imminent danger from the other party, then the threatened party may file a motion for an emergency order of protection from the court. While this tool undoubtedly helps protect children and other victims of domestic violence, orders of protection are often weaponized to punish the other party. Missouri courts will generally grant most motions for orders of protection, because they would rather be safe than sorry. If the order of protection is granted by the judge, then the party whose conduct is restricted has a legal right to a hearing on the merits of the order within two weeks from the date of the order.
There are two categories of emergency orders of protection, orders restricting contact with children and orders restricting contact with adults. One of the most common reasons such an order would be granted is due to allegations of physical or sexual abuse. It’s a no-brainer that a child should not be around a parent who has a history of physical, emotional or sexual abuse. Another common situation where orders of protection are appropriate exists when one party is abusing drugs and/or alcohol to such an extent that the child’s safety is of concern. Finally, if a parent is unable to or fails to provide their child with basic needs such as food and shelter, then allegations of this neglect may be enough to warrant an emergency order of protection for the child against the parent.
The availability of temporary orders of child custody is a vital tool for Missouri Courts to allow them the ability to preserve the environment that is in the best interest of the children involved. Temporary orders, when appropriate, ensure the child is allowed a meaningful relationship with both parents, including adequate time spent with each parent. In other situations, temporary orders can protect a child from physical, sexual or emotional abuse at the hands of one parent, or someone in the presence of the child during that parent’s parenting time. If the current custody arrangement with your children during the pendency of a divorce or child custody dispute, is not in the children’s best interests, it’s important to talk to an experienced family law attorney immediately. At The Men’s Center for Domestic Resolution, we represent men involved in divorce, child custody or other family law issues. To schedule a consultation, contact us through our website, or call us at (816) 287-1530.
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