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The Court’s Test for Temporary versus Permanent Child Custody Orders

The court sought here to answer the still confusing question of “when does a temporary custody order become permanent?”
October 21, 2024

By Family Law Attorney & Child Custody Advocate Jessica Arthur

In a case emblematic of the complex and emotional battles that custody disputes can often become, the North Carolina Court of Appeals issued in June 2024 a ruling in *Lawrence v. Lawrence*, shedding light on the fine distinctions between temporary and permanent custody orders. The case, stemming from the years-long legal struggle between a father and mother, revolves around their young daughter’s custody arrangements and how the courts handled the evolving situation. The court sought here to answer the still confusing question of “when does a temporary custody order become permanent?”

The Origins of the Dispute – Facts of this Case

Michael and Hailey Lawrence, parents to a daughter born in 2016, had their relationship unravel in late 2018, leading to legal filings in early 2019 in Carteret County, North Carolina. This marked the beginning of a lengthy custody battle that saw numerous temporary arrangements and hearings delayed due to a variety of circumstances—including, as with many legal cases, complications caused by the COVID-19 pandemic. Both parties appeared to be represented by family law attorneys.

The initial proceedings began in January 2019, when Michael Lawrence filed for child custody, among other claims. A temporary consent custody order was soon entered, granting joint physical custody on a week-on/week-off basis. However, the terms of the arrangement were revisited throughout 2019, resulting in modifications to the original consent order, leaving both parties in a precarious legal limbo. Eventually a hearing occurred and in October 2022 an order was entered.

A Temporary Order in Name, But Permanent in Practice?

At the heart of the dispute was the question of whether the January 2019 custody consent order, later modified in April 2019, had transitioned from a temporary to a permanent order. This is not a mere technicality: in North Carolina, temporary custody orders can be altered more easily than permanent ones, which require proof of a “substantial change in circumstances” which impact the minor child to justify any changes. For a temporary child custody order to be modified or changed, a subsequent hearing just needs to be set and new evidence provided. This is a large difference because if you try to change a permanent custody order, you must prove great changes since the other order or no changes can be made to the prior order.

The trial court ruled in October 2022 that the original custody order had, in fact, become a permanent one, citing the length of time—18 months—during which neither party had sought to formally revisit or modify it. This decision, the court argued, indicated that both Michael and Hailey had, in effect, acquiesced to the arrangement, transforming it from temporary to permanent.

A Challenge in the Appellate Courts

Unwilling to accept the trial court’s decision, Michael Lawrence appealed, arguing that the custody order was always intended to be temporary and that the trial court had erred in its determination. The appeal was heard in April 2024, and the decision was rendered in June 2024.

The appellate court disagreed with the trial court’s conclusion that the temporary custody order had become permanent by “acquiescence” over time. The Court of Appeals noted that while custody hearings had been delayed—due in part to the pandemic and other logistical issues—Michael had continued to file motions and requests for hearings on custody matters, signaling his ongoing intent to seek a final, permanent resolution.

Did you catch all of those time frames? From 2019 when a temporary order was originally entered, modifications thereafter, and another child custody order finally entered in 2022 which basically said – too bad dad, the order from months ago was final despite what you thought – all the way through a court of appeals decision in 2024 which sent it back down to the court again to hear. Over five (5) years of time in which conflict and injustice plagued this family and their custodial situation and now it is back down to the trial court again. Justice delayed, not denied. The father here still had a motion pending to determine holiday and summer visitations, which likely meant he missed out on seeing his child for crucial holidays during this time.

A Deeper Legal Question: Temporary vs. Permanent Orders

The court’s decision delved into the crucial legal distinction between temporary and permanent custody orders. Under North Carolina law, the court uses the “Senner test” to determine when a temporary child custody order becomes permanent by operation of law. The criteria for the Senner test which decides if an order is considered temporary; if it is clearly labeled as temporary and/or non-prejudicial, entered without prejudice to either party, and contains provisions for a future review or hearing. Permanent orders, on the other hand, establish the rights of the parties indefinitely and should completely resolve all issues raised before the court (such as the holiday and summer schedules in a custody matter).

In this case, the appellate court ruled that the original 2019 custody order met the criteria for a temporary order and that the delays in resolving the issue did not automatically render it permanent. The court further clarified that the ongoing efforts by Michael Lawrence to schedule hearings on permanent custody matters demonstrated that neither party had acquiesced to the arrangement being final.

Implications and Looking Ahead

The ruling is an important one, as it underscores the importance of clear legal distinctions in family law custody orders, particularly when a quick resolution is ordered at the beginning of a case which at least one party intends to be permanent. Custody battles are inherently emotional and can be drawn out over many years, as was the case here. Our courts in North Carolina are understaffed, overburdened, and without Family Court (which only a few counties in North Carolina have) cases can sit for years waiting for a court to have time to hear it. However, the courts must tread carefully when determining whether temporary arrangements have become permanent, ensuring that the rights of both parties—and the well-being of each and every child—are fully considered.

For Michael and Hailey Lawrence, the legal battle over their daughter’s custody may not yet be over. With the appellate court’s decision to reverse and remand the case for further hearings, the parties will now face a new trial to determine the permanent custody arrangement.

As North Carolina parents and their attorneys navigate the often turbulent waters of custody disputes, this case stands as a reminder of how critical it is to keep temporary and permanent custody arrangements clearly defined—and how appellate courts can play a vital role in ensuring those distinctions are upheld. Although this author wishes the court would have created or stated a bright line test for when a temporary order will become permanent, at least some more guidance and reiteration of the Senner test was provided.

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Jessica Arthur
Jessica Arthur has been with Cape Fear Family Law the longest, and with that experience comes a unique talent for handling some of the most emotionally charged cases. As the attorney manager and a compassionate listener, Jessica has a knack for connecting with clients in Pender and New Hanover counties who may be facing some of their darkest days. Whether it’s divorce, custody, domestic violence, guardianship, or adoption, Jessica brings a calm, steady presence that clients lean on. She’s known for her kindness and resilience—qualities that make her vital to every client’s journey to brighter days.

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