I have no idea how many unsuspecting parents have been caught in a temporary custody trap but it appears that the Kentucky Supreme Court is providing some much needed clarification. In Crouch v Crouch, 2005-SC-0761-DGE (September 21,2006)(To be published) a parent called up to active duty signed an agreed order giving the ex-spouse temporary custody of their child. When she finished active duty and tried to regain custody, the Circuit Court essentially treated that Agreed Order granting Temporary Custody as a custody modification and used a best interest of the child standard and the parent who originally had permanent custody lost.
I recently ran across a very similar situation where a parent hit a rough spot and agreed to a temporary custody order so the child could stay with the ex-spouse for a short while. The circuit court refused to vacate the temporary custody order without meeting the standard for a custody modification because they viewed the Agreed Order as a modification. Since the divorce was this same year, the standard she would have to prove was that the child’s well-being was seriously endangered – a rather monumentous task.
Fortunately, the Supremes recognized in Crouch that such agreements are intended to be truly temporary and so they are not modifications. Instead, the court should look to the agreements and determine the intent of the parties. Once the ‘contract’ is achieved, custody should revert back to the permanent status. I just hope Circuit and Family court judges become aware of the decision fairly quickly because otherwise, unsuspecting parents who are trying to work cooperatively are signing away their permanent custody/residential parent status. This decision corrects that injustice.