Getting Temporary Custody Orders While a Divorce Is Pending

Attorney Answer

Temporary custody and parenting time do not happen on their own. You get them by filing a written motion for a temporary order in your divorce case, supported by a sworn affidavit. Until that motion is filed, there is no order for anyone to follow and nothing for a judge to enforce — which is why nothing has changed for you so far.

The motion for a temporary order is a creature of the Idaho Rules of Family Law Procedure, and it is filed within an existing divorce case. That is the first thing to check: if a divorce complaint has not actually been filed and served, there is no case yet, and there is nothing for a temporary order to attach to. In deciding custody and parenting time, the court applies the best-interests factors in Idaho Code § 32-717.

Idaho Code § 32-704 is worth knowing because it covers the money side of the same motion, and it is routinely left on the table by people filing on their own. While a divorce action is pending, the court may order temporary maintenance of either spouse by the other and temporary support of a child. It may award a reasonable amount for the cost to the other party of maintaining or defending the proceeding and for attorney fees, after considering both parties' financial resources. And it may appoint an attorney or guardian ad litem to represent a minor child's interests with respect to support, custody, and visitation, with the cost charged to the parents or, if both are indigent, to the county. Read that fee provision again: if your spouse has more financial resources than you do, you can ask the court to make her contribute to your attorney fees. That is not a favor; it is in the statute.

One correction to how these motions are usually written. Judges do not enter "50/50" — they enter schedules. A motion that asks for equal time in the abstract gives the court nothing to sign. A motion that attaches a specific schedule, with days, times, and an exchange location, gives the court a document it can adopt.

What you can do

1. Confirm whether a divorce case has actually been filed. Call the clerk of the district court in your county with the names and ask for the case number. If nothing is on file, the complaint has to come first. 2. File a motion for a temporary order asking for custody and a specific parenting-time schedule, and support it with your own sworn affidavit. 3. In that affidavit, stick to dated facts: the specific dates you asked to see your child and were refused, what was said, where the child has been living, what your work schedule is, and what you have done for the child day to day. Judges act on specifics and discount adjectives. 4. Attach a written proposed schedule with actual days, times, holidays, and an exchange location. Make it something the judge can sign. 5. Ask in the same motion for temporary child support, and for a contribution to your attorney fees under Idaho Code § 32-704 if your spouse has greater financial resources. 6. Serve the motion properly and get a hearing date from the clerk. An unserved motion does not get heard. 7. Keep a dated log of every request to see your child and every response, starting today. Do not withhold support, do not go to the house uninvited, and do not take the child outside any existing arrangement — self-help is the fastest way to lose the hearing you are about to ask for. 8. Ask the court about mediation. Many Idaho counties route custody disputes through it, and a mediated temporary schedule can be in place faster than a contested hearing.

Before you take any of these steps yourself, call or email a few law offices. A consultation is usually only a few tries away — most offices offer a short initial conversation at no cost, and one of them will normally get back to you within a day or two. The steps above are the shape of what has to happen; a lawyer will tell you whether they fit your facts and how your court expects them to be done.