Can I Get Temporary Custody?

In the state of Wisconsin, temporary custody is usually given before the final custody judgment is made. While the temporary order is in effect, it will be treated with the same weight as a permanent custody order. The initial order does not always align with the final judgment for placement/custody.

A divorce case may take months or years before the family court may issue an order. This is the reason why the law allows a parent to file a petition for the issuance of a temporary custody order. The party who wants to be declared as the custodial parent may file the said petition in a different proceeding.

The petitioner, usually the parent, must be able to cite sufficient grounds to support his or her claim. More importantly, these grounds must be backed up by testimony and physical evidence to ensure that the judge will grant the petition.

What is an Ex-Parte Order?

This temporary custody order may be issued ex-parte[1] upon the filing of a verified affidavit. “Ex-parte” means that the requirement of due notice and hearing may be dispensed with. Upon the filing of an ex-parte petition, only one party is given an opportunity to present evidence in his or her favor. The adverse party is not accorded the same opportunity. Since an ex-parte motion is repugnant to the Constitutional rights of the citizens, a strict interpretation of the law is required from the judge hearing the petition.

If you want to be granted a temporary custody of your children, you can file a petition in court where the divorce case is pending. For a guaranteed win, you have to hire the services of a great attorney. Make sure that you know how to communicate with him. Tell him everything you need concerning the petition for child custody. Be honest with your lawyer so he can be prepared when he goes to court as your representative.

As a parent praying for temporary custody, it is your duty to put the best interest of your children first. You must be able to make them understand why you have to resort to such legal action. Otherwise, they may interpret it as your way of separating them from your partner. When the other spouse has caused harm or injury to your children, it is also important that you deal with the trauma the violence may have caused them.

Will a temporary order become a part of the final judgment?

There is no way to say definitively what the courts will decide in matters of support. There are several factors that may come into play when a court decides in these matters. One, in particular, is your current ability to pay, as opposed to your potential earning capacity.

This is illustrated in the case of Wallen v. Wallen 139 Wis. 2d 217, 407 N.W.2d 293 (Ct. App. 1987). The court decided to enforce the temporary order through final judgment. Upon appeal, the court of appeals reversed. This was based on the fact that the trial court based its judgment on potential capacity, instead of actual income earnings at the time of divorce. The court of appeals found this logic to be in err.

What is a Guardian Ad Litem?

A guardian ad litem is a legal court-appointed guardian who represents the best interests of the unborn, infants, children, and incompetent persons during legal actions and proceedings. They are legally responsible for protecting the best interests and well-being of those charged to their care, usually a minor. A guardian ad litem is unique in its relationship to guardianship due to it having been created by a court order, and is a temporary form of guardianship which lasts only for the duration of the legal action.

Courts appoint these types of representatives for those who need help in protecting their rights in court. These court-appointed guardians are common in divorces, child neglect cases, child abuse cases, paternity suits, inheritances which are contested, etc. Guardians ad litem are most commonly attorneys.

Guardians ad litem have responsibility and power that is quite extensive. While their duties are most common in cases which involve children, there are many areas which are in need of their service.

References: [1]Ex-Parte

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