All states have a waiting, or cooling off, period which does not allow divorcing couples to finalize their divorce for a specific amount of time. The cooling off period is meant to not only dissuade a party from filing for divorce out of anger, but to decrease court congestion. Oftentimes, parties with children need a court order determining custody, parenting time, and child support between the time their original petition is filed, and the divorce can be finalized. This blog discusses Indiana’s cooling off period and temporary child custody orders.
The statute governing the cooling off period for parties who have not reached a settlement agreement and require a final hearing provides that “…in an action for a dissolution of marriage… a final hearing shall be conducted not earlier than sixty (60) days after the filing of the petition.” For parties who have reached a settlement agreement and do not need a final hearing the statute governing the cooling off period states that a Summary Dissolution Decree may be entered “At least sixty (60) days after a petition is filed in an action for dissolution of marriage … the court may enter a summary dissolution decree without holding a final hearing under this chapter if there have been filed with the court verified pleadings, signed by both parties, containing: (1) a written waiver of final hearing; and …. a written agreement …. that settles any contested issues between the parties.”
Either party may, during the 60 day waiting period, file a motion with the the court for temporary orders regarding spousal maintenance, child custody, support, or division of property. Any motion for temporary custody will be set for hearing and a determination made no later than 21 days after the motion is filed. If the parties have reached an agreement on temporary child custody, the agreement may be filed for court approval and signature, without hearing. Temporary, or provisional, orders terminate when a final decree is entered or the divorce is dismissed. This is because temporary orders in a divorce are only meant to determine how issues will be resolved until a final order is entered or the parties reconcile.
A temporary child custody order does not affect the rights of either party at final hearing and a final order may be entered granting custody of the child to the non-custodial parent without evidence of a substantial change in circumstances, which is normally required for a custody modification. Along with a temporary custody order, the court will also issue a temporary parenting time order for the non-custodial parent, granting them “reasonable parenting time” unless it finds that parenting time will physically endanger the child or impair the child’s emotional development.
Parenting time orders are governed by the Indiana Parenting Time Guidelines, which represent the minimum time that a non-custodial parent should have with their child. The courts, however, encourage parents to create their own parenting time plan, and to use the Guidelines as a model from which to start negotiations. Just as a temporary child custody order terminates when a final order is issued or the parties reconcile and dismiss the action for divorce, so too does a temporary parenting time order.
Temporary, or provisional, orders may be issued or approved by the court during the cooling off period in a divorce to guide the behavior of the parties until the divorce can be finalized. A temporary child custody order is just that- temporary. It is meant to help the parties avoid custody disputes during the pendency of the divorce and will be replaced with a final custody order or the party’s settlement agreement once the 60 day cooling off period is up and a hearing can be held or an agreement filed and approved by the court.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
