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Applying for Temporary Orders in Divorce and Custody Cases

Updated on
February 8, 2021
Article written by
Attorney Kevin O'Flaherty

In Iowa, the first step to receiving an enforceable custody order from the court is to file a petition for custody or divorce. In the meantime, who is responsible for making decisions for the children, and where will the children live? Often, parties cannot agree on where the children will live. Often there are good reasons why a parent may not want the children to live primarily with the other parent, such as criminal activity, drug use, or homelessness.  

In this article, we will go over: 

  • What is a temporary order in a divorce or custody case? 
  • Who may file for a temporary matters hearing? 
  • What does the Court consider in a temporary matters hearing involving custody? 
  • Can a temporary matters order be modified? 
  • Other issues relating to temporary matters requests 

What is a temporary order in a divorce or custody case? 

After filing a petition for divorce or custody, both parents still have equal access to the children. Only an order from the Court can provide a change in legal custody (who can make important decisions for the child) and physical custody (where the child lives). Often, trials are not set for several months in the future, and one parent may want to have a custody order in place prior to the trial. If a party to the divorce or custody case wishes, he or she may file for a temporary matters hearing to set an Order to determine custody and support up until trial.  

Who may file for a temporary matters hearing? 

The Petitioner, Defendant, Court, Guardian ad Litem, or child’s attorney may file an application for temporary matters. The parties may also request temporary support orders, for spousal maintenance (in divorce cases) or child support, which must be paid until the trial. The Petitioner may ask for temporary matters in the Petition. The Court will only consider matters set forth in the application.  

What does the Court consider in temporary matters hearings involving custody? 

The Court considers the best interests of the child to be the main consideration in all custody cases, including temporary matters hearings. The Court will consider a child’s age, each parent’s relationship with the child, the abilities of the parents to communicate with one another, if there is a history of abuse, if one parent cannot foster a relationship between the other parent and child, the child’s stability and who cared for the child since the separation, the parents ability to provide for the child’s mental, physical, and emotional development, whether the custody arrangement applies with the child’s best wishes, the geographic proximity of the of the parties, whether the parent, child, or other children will be jeopardized if the other parent receives visits, any other relevant issues.  

The Court must also consider the age of the applicant, the physical and financial condition of the parties, and any other relevant matters. The bar for which matters are relevant is extremely low in child custody cases. The parties may present evidence, testimony, and affidavits of witnesses (but may not call witnesses at the hearing).  

If joint legal and physical custody is not awarded, the court will almost always find the noncustodial parent should be given regular visitation. However, under extreme circumstances, the Court may order the other parent to have no contact with the child, or to have contact with the child at the custodial parent’s discretion.  

Can a temporary order be modified? 

Once a temporary order is entered, it can only be changed on following either party showing there has been a substantial change in circumstance. Otherwise, the order will continue until the action is dismissed or a decree is entered.  

Are there any other issues parties must know prior to filing an application for a temporary order? 

If the parent ordered to pay support is less than eighteen years old, and the child support recovery unit is providing child support recovery services, they will be required to attend parenting classes. If the child support recovery unit is not providing services, these parenting classes may still be required.  

A willful violation of a temporary order may be held in contempt of court, and committed to the county jail for at most thirty days for each offense, withhold income, modify visitation, or imposing some other penalty 


Applying for Temporary Orders in Divorce and Custody Cases
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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