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In many divorce or paternity cases, it may be several weeks or months before a final hearing is set to decide child custody,¹ parenting time, and child support, along with any other issues in the case, such as property division in divorce cases. Many parents simply cannot agree amongst themselves and/or through counsel as to physical custody, parenting time, and/or child support matters.

However, if it is at all possible, the parents should operate informally under their shared understanding of an agreement to these issues² or have their agreement reduced to an Agreed Entry and signed by the judge, so it is a binding provisional order of the court. If no agreement can be reached, the one or both parties should seek a provisional hearing.³

Under the divorce act, there are several statutes covering the array of issues that may need to be temporarily decided until a final hearing, including custody and child support.⁴ These allow a party to request a short hearing, and, after a brief⁵ presentation of evidence, the court temporarily decides the matter during the pendency.⁶ There is no provision for provisional orders under the paternity act. That said, case law makes clear provisional orders may be issued by the court in paternity cases.⁷

Without a full presentation of the evidence, the court may not make as accurate of a decision as it would with hearing and receiving all of the evidence. Thus, temporary or provisional orders are “. . . without prejudice to the rights of the parties or child as adjudicated at the final hearing in the proceedings.”⁸ That said, any seasoned attorney will advise his or her client a provisional order as to physical custody is likely to be maintained at the final hearing that will occur weeks or months (or sometimes years) later.

Trial courts like stability and permanency for children as reflected in the caselaw. Even though this is a temporary physical custody order, it is still a de facto custody determination that will be modified if the court were to change its mind later. This has long been the view of trial court judges and Indiana’s appellate courts: “ . . .permanence and stability are considered best for the welfare and happiness of the child.”⁹

For this reason, a litigant requesting a preliminary hearing should spend his or her time on what he or she seeks for the children’s physical custody in the future. The rest (such as over or underpayment of child support) can be squared up at the final hearing. There are many times litigants meet their attorney for the first time just before the preliminary hearing. This is a recipe for major problem-to-disaster outcome insofar as for future physical custody if the parent who has the majority of the time with the children up to the preliminary hearing, obtains temporary physical custody.

Thus, it may seem odd and a waste of your time and money to thoroughly prepare for a preliminary hearing and vigorously fight for physical custody, but insofar as physical custody is concerned, this is not the case. The statute that says a preliminary hearing is without prejudice to the parties, at least as it relates to physical custody, is not worth the paper it is written on in the family law act. Fight for physical custody at the preliminary if you want to be awarded primary physical custody at the final hearing. The rest will take care of itself, not that life will not be that much easier after a preliminary hearing. But there will be some certainty with the preliminary order.

Ciyou & Associates, P.C. attorneys are keenly aware of the stakes at a preliminary hearing and prepare every client for this (and every) legal “battle”. We hope this blog helps you understand that you can get a provisional order before a final hearing as well as understand the importance of the physical custody determination made at a provisional hearing. While this can be overcome later if you do not prevail, you should give it your best legal effort. This blog is written for general educational purposes. It is not intended to be applied to any particular case, nor is it legal advice. It is an advertisement.

1. Ordinarily, significant legal custody issues do not arise before a final hearing where a final appealable order will be issued on all pending matters, including legal custody, based on the evidence.
2. Obviously, different counsels and/or counsel on differing sides may not agree with this approach.
3. Litigants should take care to follow the specific requirements for provisional hearings under the divorce statutes, many of which require verified affidavits. See Indiana Code 31-15-4-1, -15.
4. Indiana code section 31-15-4-1.
5. Typically, preliminary or provisional hearing as they are also called are set for fifteen (15) minutes to thirty (3) minutes if the parties want to get into court in a short time. The proper presentation of full evidence takes much longer.
6. Preliminary orders may be modified before the final order if the court will entertain an additional hearing. Indiana Code section 31-15-4-16.
7. In re Paternity of M.R.A., 41 N.E.3d 287, 293 (Ind.Ct.App.2015).
8. Indiana code section 31-15-4-14.
9. Lamb v. Wenning, 600 N.E.2d 96 (Ind.1992).