Temporary Orders in Divorce: Factors the Court Considers

By: Steven Fernandez
November 22, 2016

As the Founding Fathers gathered in Philadelphia in the summer of 1787 to draft what would become the Constitution, delegates from Virginia came ready to present their vision for the fledgling republic. With a few alterations, what became known as the Virginia Plan became embedded in the Constitution, with its provisions for a government that had three equal branches (legislative, executive, and judicial). Those Virginia delegates largely got what they wanted because they acted early.

Family law cases are much the same, because important decisions are made in the early stages. And just like the delegates presented the Virginia Plan on one of the first days of the Constitutional Convention, family law attorneys must present temporary orders to the judge only a couple of weeks after the petition is filed. In most cases, these temporary orders are the blueprints for the final orders, even though the latter may not be issued for several months or even longer.

Procedural Matters

As soon as a party files a divorce or other family law petition, most judges issue ex parte temporary orders. They vary by jurisdiction, but typically contain prohibitions against spending community property funds for anything other than living expenses or legal fees and provisions for the safety and welfare of the children. If there are verified allegations of domestic abuse, the judge may issue a “kick-out” or “move-away” order without a hearing; most judges require a police report or other such evidence. These protective orders can contain other provisions as well, such as financial reimbursement for medical expenses and anti-stalking orders.

These orders are normally effective for about two weeks, giving the petitioner time to serve the respondent. Once service is perfected and the respondent has notice, the judge will hold a full hearing and consider many other issues. 

Child Custody

California family law judges prize stability over almost anything else when they determine the best interests of the children. As a practical matter, judges will not upset workable arrangements to experiment with arrangements that may or may not be better. It’s the classic “a bird in the hand is worth two in the bush” idea.

In 1979, California lawmakers passed the nation’s first joint custody law, which basically stipulates that although the children should “live” with one parent, both parents should have roughly equal voices in decision-making matters, and the children should have consistent and meaningful contact with both parents. Especially if the parents have only recently separated, the temporary hearing is an ideal time to present a favorable vision for joint custody, since the children do not already “live” with one parent or the other.

To determine custody issues at the temporary hearing, the court looks to several factors, including:

Safety and Health: In possible abuse cases, judges typically order social studies to determine the veracity of these allegations. The social worker makes a recommendation as to custody and visitation, and most judges give these opinion considerable weight. Many judges also appoint attorney or guardian ad litems to represent the children.

Stability: As mentioned above, if the current arrangement is working, most judges want to extend it, even if there are rather serious problems.

Child’s Preference: California does not set a specific age, but judges will listen to children who are mature enough to express such opinions.

Ability to Co-Parent: Many parents hire over-aggressive lawyers who fight the other side at every turn. This strategy often backfires, because such intransigence is evidence that the parent will not be a good co-parenting partner after the divorce is final and may deny rights to the other parent.

If circumstances change, such as the release of a social worker’s report that recommends the other parent have primary custody, a party can file a motion to modify the temporary custody orders. These motions are usually good ideas, because the parent with custody is likely to keep it.

Child Support

California is an income shares state which determines child support based on the amount of both parents' incomes, as well as the amount of time that each parent actually spends with the children. The guideline amount is presumed to be reasonable, and this amount is based on:

  • Number of children before the court,
  • Combined economic resources of the parents,
  • Number of children not before the court (i.e., does the parent have step-children to support), and
  • Child-related expenses, such as health insurance premiums, uninsured medical costs, travel expenses, and day-care costs.

Typically, the court comes up with a total child support obligation, and then divides that figure proportionally between the parties. If the guideline amount is insufficient, a parent can petition for an increase or file a subsequent motion to modify.

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