Utah judges and domestic relations commissioners reassure parents that early custody, parent-time, and support orders issued during the pendency of the child custody case are “just temporary.” Don’t believe it. Those so-called “temporary” orders often become the practical blueprint for the final decree because courts later say, “This has been working, so why change it?” If you’re involved in a child custody dispute, treat temporary orders as likely to become permanent unless you build a record, get (not just ask for) real testing of custody and parent-time schedules, and prepare to show how and why a different plan is better for the long term.
The Myth of “Temporary” Custody Orders in Utah
One of the most persistent myths in Utah divorce and custody litigation is that the orders you get a temporary-orders hearing are of no lasting effect. After all, that’s what “temporary” means, right? Judges and commissioners will say some version of: Don’t worry, these are just to stabilize things while the case moves forward. They carry no prejudice and no precedential effect.
Sounds comforting. Indeed, this is how temporary orders should work.
But watch what happens later. At trial, the very same court (and/or the parent who benefited from the initial order) argues that the existing schedule should stay in place because it has “worked well” and the other side hasn’t “proven” that something else would be better. The supposed “temporary” plan quietly hardens into the new normal.
Why Temporary Orders Exist (In Theory)
Utah R. Civ. P. 101 and 106 allow courts to enter custody, parent-time, and child-support orders early to reduce chaos for children while the case is pending. The idea is quick stability—not to prejudge the merits of the case. Temporary orders are usually made on affidavits and proffers, not live testimony and cross-examination. They’re intended to be provisional, a stopgap until the court can hold a full evidentiary hearing applying Utah Code § 81-9-104 (custody factors) and § 81-9-302 (parent-time standards).
But Status Quo Becomes a Quasi-Presumption
In practice, those early orders often become a powerful status quo. At trial, you’ll hear:
- “This schedule has been working for ___ months.”
- “The other parent hasn’t proven a better option.”
That flips the legal burden. The law requires the court to decide custody based on best interest at trial, not to reward inertia. Yet provisional orders—entered after an abbreviated paper process—become the unspoken baseline.
Temporary orders aren’t binding precedent for final custody and parent-time rulings. Temporary orders are not final adjudications, and due process demands a full evidentiary hearing before final custody rulings. Still, trial courts often lean on the “if it ain’t broke, don’t fix it” argument.
The Due-Process Problem
Parents are told to accept limits “for now” because they’ll get their day in court later. But when later comes, the deck is stacked:
- No real comparative testing of different schedules happened.
- Yet as long as the untested arrangement hasn’t been an obvious disaster, the judge treats it’s success as self-evident.
That’s not how due process works. Quick, paper-driven decisions under Rule 101(e) and 106 should not quietly become the permanent plan without a real evidentiary process.
Non-Appealable Orders Heighten the Need for Careful, Evidence-Building Use of Temporary Custody
A parent who believes a temporary schedule is unworkable or harmful has almost no appellate recourse beyond returning to the trial court to seek modification, but the trial court often hesitates to revisit its own order. Because appellate review will not occur until after final judgment (which final judgment comes many months later—in many cases a year or so later), the trial court bears the full responsibility for ensuring that its interim schedule produces reliable information rather than entrenching an untested status quo.
This non-appealability means a poorly designed temporary order can silently calcify. Children may live under an ill-suited arrangement for a year or more, and by the time the case reaches trial the schedule is cited as “working well enough” simply because the family members have adapted out of necessity, not because it is the best arrangement. Because appellate review is unavailable, the only realistic safeguard against that inertia is trial-level experimentation and monitoring. By consciously structuring temporary orders as a provisional, evidence-gathering, and testing phase of the case, the court protects the integrity of its ultimate decision and prevents early missteps from hardening into de facto permanency.
Put bluntly, because no higher court will step in to correct a subpar interim schedule, the trial court must self-correct. Testing both parents’ proposals during the pendente lite phase gives the judge a factual record strong enough to support the final decree and withstand later challenge — without leaving children stuck in an arrangement chosen blindly at the outset.
What Parents (and Lawyers) Should Do
- Take temporary orders seriously. Don’t assume they’re harmless.
- Push for review hearings or adjustments. If the first plan is clearly flawed, ask the court to revisit it.
- Request clarity. Ask the court on the record whether the temporary schedule will be treated as evidence of “status quo” later.
- Build a record. Keep school records, counselor feedback, and parenting logs to show what is or isn’t working.
- Propose true trial runs. Ask the court to test different arrangements if the case will drag on.
- Children Aren’t Lab Rats” — But Careful, Time-Limited Testing Is Not Experimentation for Experiment’s Sake
Opponents say “children aren’t lab rats,” but refusing to test custody schedules is riskier. Children already live under an untested status quo; keeping it in place for a year isn’t safer, it’s blind guessing.
Controlled, court-supervised testing isn’t reckless, isn’t random: judges can shift schedules gradually, monitor the effects, and adjust quickly if it causes articulable harm.
The alternative is letting a poor fit harden into “good enough” simply from time and adaptation.
Thoughtful, reversible testing gives courts real-world data to protect children from long-term harm caused by speculation. Avoiding any adjustment isn’t caution, it’s gambling with a child’s future on incomplete evidence.
A Better Way: True Testing, Not Freezing
If the goal is to protect kids while the case develops, courts could use the pendente lite period to experiment:
- Start with one schedule, then try another mid-case.
- Collect input from teachers, therapists, and both parents.
- Look at attendance, grades, emotional stability, parent cooperation.
- Have the court (not a GAL or custody evaluator) interview the children about their experiences, observations, opinions, and desires, and the facts underlying them.
Actual data beats inertia. Without comparison, saying the first schedule “worked” only means no one tried anything else.
Temporary Orders Can — and Should — Generate Real-World Custody Evidence
Temporary custody and parent-time orders aren’t meant to lock in a final result; they exist to keep children safe and life predictable while the court gathers the information it needs. That very purpose is compatible with (and often enhanced by) a court’s willingness to experiment with different arrangements during the pendente lite phase. A schedule that looks sensible on paper can fail in practice; conversely, a parent who is untested in a particular caretaking role may do well once given the chance. Courts that use temporary orders flexibly can turn what is otherwise guesswork into data.
A trial judge can, for example, begin with one parent as the school-week custodian while the other exercises extended weekends, then swap or expand the schedule after a few months if the first arrangement proves unworkable or unfair. Both parties and the court then see how the child responds to transitions, school performance, emotional stability, and each parent’s follow-through. This turns the temporary-order period into a real-time, low-risk laboratory rather than a rubber stamp of whichever status quo happened to exist when the petition was filed.
This approach also discourages the common problem of “status quo gaming.” Parents often rush to seize de facto primary care early in litigation because they know courts hesitate to change an established routine at trial. When a court signals that temporary custody is genuinely temporary and open to adjustment based on observed outcomes, the incentive to entrench or obstruct decreases. Both parents know that performance, not pre-litigation maneuvering, will carry weight.
Finally, testing schedules during the pendente lite phase aligns with the court’s fact-finding mission. Custody evaluations, GAL reports, and expert opinions are useful but inevitably subjective. Objective, lived experience under different schedules gives the court something those reports cannot: proof of how each parent actually functions when given comparable time and responsibility. The result is a final custody order grounded not in speculation or stale status quo, but in evidence of what arrangement truly serves the child’s best interests in the real world.
Temporary orders were meant to calm the waters, not decide the case. If courts are going to treat the first quick schedule as evidence of what’s “best,” they should say so and give parents a fair chance to build a real evidentiary record. Until that reform happens, parents need to go into the temporary-orders phase with eyes wide open: fight for a schedule that’s at least livable, push for actual testing when possible, and document everything. Because in Utah family court, “temporary” often isn’t.
Utah Family Law, LC | divorceutah.com | 801-466-9277