by Wes Cowell; updated 7 January 2015
If a case may take longer than a few months, the court may consider a temporary award of parental responsibility. Be warned: "temporary" tends to turn into permanent. Work with a lawyer. Need advice? Call, leave your info, or schedule a consult.
Not all divorce cases are simple and fast. Some cases can last years. While the case is going on, decisions have to be made for the kids – school registrations, medical care, etc. Parents have to agree on these things. If they can’t agree, they have to go to the judge for a decision. The judge, of course, doesn’t want to get into the business of micromanaging the parenting of the couple’s children. So, in cases where legitimate parental conflict jeopardizes the children’s well-being, a judge may make an award of custody to one parent for decisions that have to be made until the case is over.
Illinois law allows judges to allocate parental responsibility temporarily -- during the divorce case -- to serve the child's best interests. The law says:
A court may order a temporary allocation of parental responsibilities in the child's best interest before the entry of a final allocation judgment. Any temporary allocation shall be made in accordance with the standards set forth in Section 602.5 and 602.7 . . . .
Seizinging the High Ground Early: In some cases, awards of “temporary” parental responsibility are sought to gain an advantage in later negotiations or at trial. In those situations, one parent -- usually the mother -- goes to court very early (usually within a week of filing) and seeks to obtain "temporary" custody of the children. The argument goes like this: "These parents fight a lot and can't agree on anything and decisions have to be made for the children (like school registration, baptisms, medical treatment, etc.). Who will make those decisions? They can't work together right now. We need a temporary parental responsibility order, judge, just a temporary one to be in effect only while the case is still going on."
Judges don't like these fights for temporary decision-making power. They take a lot of time and resources and may end up being duplicated in a final hearing. To avoid this burden, courts refer parents to counseling and mediation and "encourage" the attorneys to work things out by agreement. Parents and attorneys sometimes settle for a bad, temporary agreement "just to move things to the next stage."
Temporary Begets Permanent: The problem with “temporary” orders is that they tend to evolve into permanent custody awards. Most attorneys who specialize in family law don’t object to temporary awards. Their acquiescence stems from a misunderstanding of the law. Illinois law specifically states that in divorce cases, certain “temporary” orders are just that – they are temporary; and any injustice may be corrected later in the case. Temporary orders for child support, maintenance (alimony), injunctive relief, and temporary attorney's fees can all be ruled on by the court and then modified, or even undone. For those matters, “temporary” truly means temporary. For example, “temporary” child support orders may be adjusted later in the case and the court may even go back and retroactively correct a support order that was too high, or too low. The law specifically gives the court the power to make “temporary” orders regarding child support, maintenance, injunctive relief, and attorney’s fees.
"Temporary" Impacts "Final" Award: When it comes to allocation of parental responsibilities, however, things work differently. The law says the final allocation award must be based on the child's best interest. The factors the court MUST consider in determining child's best interest include:
"the ability of the parents to cooperate to make decisions" (a temporary award may eliminate the opportunities for cooperation),
"the level of each parent's past significant decision-making," (a temporary award may eliminate on parent's abilty to engage in decision-making), and
"any prior agreement" (parents sometimes misguidedly agree to temporarily give up decision-making involvement while their case is going through the court).
Thus, a temporary allocation of parental responsibility and decision-making necessarily impacts the final allocation judgment.
Judges Like a Working Status Quo: There is a pragmatic reason for the "temporary-begets-permanent" phenomenon. "Temporary” allocation awards establish a status quo. Divorce judges like a stable, non-violent, status quo. Once a temporary allocation award is made, it gains momentum toward becoming the final allocation award. A (“temporarily”) non-decision-making parent will be forced to either capitulate to a permanent agreement allocating all decision-making to the other parent . . . or try to convince the judge to alter the stable status quo by making a joint award. The trial itself would pit as adversaries the very parents whom the judge is being asked to force into a joint allocation. At trial, of course, the old argument will be pulled out: “You see, judge, these two people can’t agree on anything – not even on whether they should co-parent the children – that’s why we did the temporary award in the first place." It’s not hard to see why “temporary” allocation awards so frequently turn into permanent awards.
In Modification Cases: If you seek to modify a final allocation award after the divorce, may you seek a temporary allocation award during that modification process? We used to be able to do this but, since the 2016 amendments, I don't think we can, anymore.
The 2016 law says:
(a) a court may order a temporary allocation of parental responsibilities in the child's best interest before the entry of a final allocation judgment.
750 LICS 5/603.5(a) (emphasis added)
Once the final allocation judgment is entered (during or at the conclusion of the case) this section of the law would seem to not apply. The final judgment controls until a new, modified allocation judgment is entered. The law does not make provision for temporary allocaiton awards during a modificaiton proceeding.
Under the old law, a temporary custody award could be obtained even during modificaiton porceedings. Not so, anymore.
After Reconciliation -- Typo in the Law: When a divorcing couple kisses and makes up, their divorce case is dismissed. Any temporary orders and awards are dismissed along with the case -- they cease to have any power or effect. Temporary orders may be preserved, however, so that they survive the dismissal of the divorce case. THe law says"
(b) A temporary order allocating parental responsibilities shall be deemed vacated when the actionin which it was granted is dismissed, unless a paernt moves to continue the action for allocation of parental responsibilitiesfiled under Section 601.5.
The law contains a typo. Section 601.5 was repealed 1 January 2016. The law should referd to section 601.2(b)(2), not 601.5.