Temporary Child Custody Orders in an Arizona Divorce Decree
In a dissolution of marriage proceeding, some custody and support orders are temporary. They are only effective during the divorce. The custody and support orders in the dissolution decree are more permanent. The terms cannot be changed unless the couple’s circumstances change.
What happens when the court includes a temporary custody order in the final decree of dissolution of marriage? Does it merge into the final decree, so that it can only be changed if the couple’s circumstances change?
The Arizona Court of Appeals addressed this issue in the case of Hunt v. Hunt, 529 P.2d 708 (1974).
Facts and Background
Mr. Hunt and Mrs. Hunt got married and had a child. Mrs. Hunt filed for divorce. After a trial, the court issued a decree distributing property and awarding attorney fees to Mrs. Hunt.
The final order also addressed custody of their child. In it, the court ordered that Mr. Hunt have custody with certain conditions. First, the child was to stay with her grandmother for the next 30 days. Second, a custody review hearing would be held on September 14, 1973. The review hearing actually occurred on October 1, 1973.
The court heard testimony and awarded permanent custody of the child to Mrs. Hunt.
Mr. Hunt appealed.
Intention of Trial Court
A divorce court has authority to enter temporary and permanent custody orders. The court can make temporary orders at any time before the permanent order is issued. However, once the court enters the final decree of dissolution of marriage, it only has limited power to alter it. It can only order changes to a child custody order in a divorce decree when a parent shows that the couple’s circumstances have changed substantially and that change will continue.
Mr. Hunt argued that the final divorce decree, entered in July, awarded him custody. He asserts that the court did not have authority to change it later absent a showing of changed circumstances. Mrs. Hunt argued that the court intended the July custody order to be a temporary order.
The Court of Appeals agreed with Mrs. Hunt. The July custody order referenced the September child custody review hearing and, therefore, appeared to be a temporary order in a final decree of dissolution of marriage. The lower court intended the July order to be an interlocutory order effective only until the final hearing to be held after the divorce decree was finalized.
Effect of Error
The Court of Appeals agreed that the order looked like an interlocutory order. However, the trial court lacked authority to enter an interlocutory order once it entered the final divorce decree. The Court of Appeals found that the court committed error by including a temporary child custody order in its final judgment. It cited language from Brighton v. Superior Court of the State of Arizona, 526 P.2d 1089 (1974).
“We agree with petitioner that the language of A.R.S. § 25-312 clearly mandates that all issues relative to the marital status and the termination thereof be resolved prior to entry of a decree of dissolution. Piecemeal litigation is not to be encouraged; to the contrary, the amicable settlement of custody, maintenance and property disputes between spouses is the desirable goal. Where dissolution of the marital status to be allowed prior to resolution of the other issues, litigation would be fostered rather than deterred.”
Mr. Hunt contends that the Court must consider the temporary child custody order final since it’s contained in the final divorce decree. If it is final, the lower court did not have authority to modify it without a showing of changed circumstances.
The Court of Appeals rejected this approach, however. Instead, it treated the July order as a final judgment erroneously containing temporary child custody provisions. Since Mr. Hunt did not appeal the order, the Court said that he was bound by all its provisions. This included the provisions for temporary child custody and the subsequently scheduled hearing regarding permanent custody.
The Court of Appeals affirmed the trial court’s judgment.