Getting temporary custody of a child without going to court can be a complex process, but it is possible in certain circumstances. Here is an overview of how to pursue temporary custody outside of the court system:
When Temporary Custody is Needed
There are a few common situations when a parent may need to obtain temporary custody of a child without a court order:
- The other parent is unavailable or missing – If the other parent is incarcerated, in rehab, experiencing homelessness, or their whereabouts are simply unknown, one parent may need to take over custody on a temporary basis.
- There is an emergency or safety risk – If there are concerns about the child’s safety due to abuse, neglect, or other risks in the other parent’s care, temporary custody may need to be established right away while the issues are addressed.
- The parents agree to a short-term change in custody – Sometimes parents mutually agree to shift custody for a limited period of time due to changes in work schedules, family circumstances, vacations, etc.
- Establishing custody ahead of a court process – When filing for divorce or permanent custody changes, one parent may request temporary orders ahead of the final hearing.
Requirements for Obtaining Temporary Custody Out of Court
While going through the courts is the most common way to get temporary custody, it is possible to do it outside of court if certain requirements are met:
- The parents must mutually agree to the change in custody – If one parent objects or does not consent, the court must be involved to impose an order.
- It should be for a limited period of time – Temporary custody arrangements should have a clear start and end date. They are not meant to be indefinite.
- The best interests of the child must be considered – Even an informal agreement should focus on ensuring the child’s safety and well-being above other factors.
- Jurisdictional rules must be followed – The agreement should follow the custody laws and jurisdiction specifics of your state or region.
- Child support may need to be addressed – Child support obligations should shift along with changes in custody. This can either be mutually agreed upon or determined via state guidelines.
How to Make a Temporary Custody Agreement Out of Court
If the above requirements are met, parents can create their own uncontested temporary custody agreement by following these key steps:
Discuss the Situation and Agenda
- The parents should communicate clearly about why temporary custody is needed and what is best for the child. An open dialogue lays the groundwork for agreement.
Make a Written Agreement
- Put the details of your temporary custody arrangement in writing to make it official. Include a clear custody schedule, duration, and any other terms.
Get the Agreement Notarized
- For added legal validity, have your temporary custody agreement notarized by a notary public. This verifies the parents’ identities and consent.
Inform Your Child’s School, Doctor, etc.
- Notify anyone providing services to your child of the change in custody and allowable contacts. Update records as needed.
Follow the Terms
- Both parents should fully comply with the terms of the temporary custody agreement during its duration. Violating the agreement could risk court involvement.
Modify, Extend, or Terminate the Agreement
- If needed, the parents can mutually agree to amend, lengthen, or terminate the temporary custody agreement using the same informal process.
Working With an Attorney on a Temporary Agreement
While not legally required, consulting with a family law attorney can be very helpful when creating an enforceable temporary custody agreement and determining if going to court is necessary. Attorneys can:
- Review your situation and goals – An attorney can advise if a temporary agreement is appropriate or if court action is recommended.
- Ensure state laws are followed – Custody laws vary significantly by state and an attorney can guarantee your agreement abides by jurisdictional rules.
- Draft the agreement – Attorneys have the right expertise to draft temporary custody agreements designed to hold up legally if challenged.
- Offer impartial guidance – Since temporary agreements involve high emotions, an attorney can guide parents to act in the child’s best interests.
- Handle filing and notifications – Your attorney can file your agreement with the court and formally notify the other parent if desired.
While going to court is the conventional route for custody changes, a thoughtfully crafted temporary custody agreement can allow parents to avoid court during specific situations, provided they agree it is in their child’s best interests. Consulting an attorney helps ensure the agreement adheres to important legal and safety considerations.