Guide to Child Custody in Arizona
(Everything Your Should Know)

Child Custody

What is the process for addressing Child Custody?

Mediation: At the Aurit Center we offer Child Custody Mediation services, helping married or never-married co-parents to reach custody agreements in the best interests of their children. We genuinely care about the well-being of children and we help both parents be their best self and remain focused on what their children need most—for their parents to keep conflict as low as possible and to ultimately resolve conflict. Child developmental research supports this position.

Litigation: When resolving child custody issues in mediation is not an option, parents can hire attorneys. These attorneys help each of the parties in an attempt to prevail. It is important for parents to understand the Arizona Child Custody Statutes if they might be taking their case to court. This guide will explain the laws and help you to become familiarized with the terms you will need to know to understand your process moving forward. Even if you have already hired attorneys or have begun a court case, you can come to mediation to reduce conflict and reach resolution.

How can I help protect the well-being of my children while custody is being decided?

We understand that your kids are priority number one. Child custody is the most important aspect of divorce for most parents. Realizing conflict regarding custody negatively impacts children, parents can resolve to put their kids first and reach agreement in mediation. Parents can help protect their children’s well-being by:

• behaving civilly and professionally toward their co-parent;
• focusing on the future and not the past; and
• being flexible and willing to compromise; and
• seeking counseling for themselves and their kids as needed.

Additionally, in mediation they can further protect their children by:

• learning to address interests and not positions;
• identifying and understanding their own interests;
• Identifying and understanding the interests of their co-parent;
• learning to develop options their co-parent will accept;
• understanding the typical responses of children during divorce; and
• developing improved co-parenting skills to serve as foundation for healthy co-parenting in the future.

Litigation: For legal enforcement of visitation a Petition to Enforce Visitation can be filed with the court. The court will make a determination and has the option of ordering make-up time to the non-custodial parent, having the custodial parent attending an educational course, family counseling, issuing an order of civil penalty or transferring custody.

Can I stop my co-parent from telling our kids bad things about me?

Yes you can. When a parent negatively influences a child toward another parent it is considered to be parental alienation. The courts consider this to be negative manipulation of a child. You can include language in your parenting plan to specifically deter alienation. It is important for parents to understand that research shows that the conflict between parents is harmful to children. If your co-parent does not adhere to the agreement you can seek court intervention.

Do step-parents have the right to custody?

If a step-parent has not legally adopted the child, they have no right to custody or parenting time in the event of a divorce or legal separation. That said, many legal parents are willing to cooperatively provide the opportunity for a step-parent to continue to actively participate in the child’s life but they are not legally obligated to do so.

What is In Loco Parents?

A.R.S. 25-401

In Loco Parentis refers to the person who has been acting as the parent and has a meaningful relationship with the child in the extended absence of the legal parent.

Some general harm-reduction guidelines are:

• Don’t voice criticism of your co-parent in front of your children;
• Don’t put your kids in the middle by asking them to convey messages to your co-parent;
• Listen carefully to understand your co-parents perspective;
• Be flexible knowing that co-parenting requires you both to deal with changes;
• Be professional. If you only follow one guideline, this is the one to choose. Behave toward your co-parent as you would toward any professional. Being courteous, kind, mindful, patient, and positive at all times will help to create a cooperative relationship and your kids will reap the benefits.

Click here to read our articles:
3 Ways Parents Can Help Their Kids Adjust;
Open Communication: Helping Children through Divorce;
Explaining Divorce to Children;
Divorcing Parents: 4 Ways You Can be a Superheroes to Your Children;
Great Books to Explain Divorce

How can we learn more about Co-Parenting?

There are a number of resources that can help you learn more about healthy co-parenting. You might consider reading:

Click here to read:
Courageous Co-Parenting by Michael Aurit
As Seen in Raising Arizona Kids Magazine

Are there guidelines for communicating with my co-parent?

The following is an excerpt for our article: Co-Parent Tall: 5 Positive Communication Tips

We encourage co-parents to use positive communication techniques in the best interest of themselves and their children. We provide parenting mediation services and guide discussions that allow you to reach agreements for any parenting issue. Children benefit when their parents have a healthy relationship and avoid conflict.

#1 – Communicate Professionally
Channel the professionalism you display at work to ensure that communication with your co-parent is polite, effective, and respectful. And, remember, as in any professional relationship, choose your words thoughtfully, and whenever possible, offer support willingly.

#2 – Make Requests, Not Demands
Making demands of your co-parent is guaranteed to cause conflict and will lower the chances of getting what you need. Even minor disagreements can explode when you make demands.

Make “requests” or “proposals” instead of demands.
“I suggest what we do here is X. What do you think?”
“We could handle this by doing X. Would that work for you?”
“Would you consider doing X instead of Y?”

Our mediators guide parents to make strategic requests and proposals the other parent will likely find acceptable. This process focuses on collaboratively finding a solution. Demands set you up for conflict.

#3 – Use Your Knowledge
Given your history as spouses, you are likely an expert on your co-parent’s patterns of behavior and communication. Although these things may frustrate you, you can use this knowledge to communicate in a healthier way. For example, if you know your spouse is cranky right after work, avoid conversations right after work whenever possible. Extending this type of courtesy to your co-parent, helps them to see you and your co-parenting relationship in a positive light.

#4 Thoughtfully Respond rather than React.
It’s common to “think the worst” or “react” when your co-parent says or does something you feel is negative. A healthier way to respond is to acknowledge your reaction and be kind to yourself. Release any knee-jerk reactions so you can make a conscious choice about how to respond. *Notably, this technique does not apply to any intentional or extreme bad behavior.

In the spirit of the Golden Rule, bringing a sense of forgiveness to challenging situations as they arise can be extremely helpful. Giving your co-parent the benefit of the doubt can move you both toward a healthier co-parenting relationship.

#5 Center Communication around the Kids
Make sure to share all child-centered information with your co-parent. Keeping your co-parent up-to-date will better prepare you both to take on your parenting roles. Take responsibility for ensuring your co-parent is not left in the dark. By doing so, you support your children’s need to have you both actively involved in their lives. Children feel safe and secure when they experience their parents cooperating.

The Aurit Center For Divorce Mediation is here to help parents, whether they are divorcing, separating, or never married. We will help you build a parenting plan that sets you up for success now and into the future.

How can I help my kids?

The best thing you can do for your kids is support your co-parent. This is not always easy, but your kids benefit greatly. Seeing their parents get along contributes to their sense of security. Dig deep, and support your co-parent for your kid’s sake. Here are some tips for helping your kids through transition:

• Consider each child’s age and adjust communication accordingly.
• Explain the basic facts around what is happening and avoid going into details about the divorce. Children need to know that it is something the parents agree upon and will both always love the children. Children do not need to know the details of why you are divorcing.
• Continually let them know they are safe and loved by both of you.
• Do what you can to mirror schedules at both of your kids’ homes. Routines do not need to be an exact match, but consistent mealtimes and bedtime routines can make a world of difference in helping kids to be happy and healthy in their two-home family.
• Get professional help whenever necessary.

Click here to read our articles:
3 Ways Parents Can Help Their Kids Adjust;
Open Communication: Helping Children through Divorce;
Explaining Divorce to Children;
Divorcing Parents: 4 Ways You Can be a Superheroes to Your Children;
Great Books to Explain Divorce

What can I do if we can’t seem to get along?

Some conflict between you and your co-parent is completely normal. The occurrence of conflict, in and of itself, does not necessarily impact your children’s development, as long as you avoid an escalation of conflict, or sustained conflict, and ultimately reach a resolution.

If you and your co-parent struggle to communicate effectively with one another, it is extremely helpful to establish agreements regarding how you will communicate with one another. You can include these agreements in your parenting plan. This might include an agreement:

• • • To not send messages through the children;
    • To not comment on your communications to the children;
    • To respond within a certain period time whenever possible;
    • To share all important child-related information with one another;
    • To use a secure messaging center;
    • To avoid negative comments of any kind within earshot of the children;
    • To make proposals instead of demands; or
    • To have a set resolution process in the event you can not reach agreement on your own, such as mediating the issue.

We are here to help you keep conflict low. To learn more about communicating with your co-parent, we have written the following article: Co-Parent Talk: 5 Positive Communication Tips

Is it best to get therapy during my divorce?

The Aurit Center focuses on wellness and encourages professional services whenever they may be of help. To best support our clients we offer referrals to professional services, to include therapists. If you are considering counseling for you or your children, please visit our Therapist Resources.

How do I know when my kids need more support?

You do not have to wait for signs of trouble to utilize support services. The reality is that divorce is difficult and providing therapeutic support for your child can be extremely helpful in avoiding difficulties. It can be helpful to speak with a qualified therapist to see how they may be able to help. The more quickly you address the issue the less likely it will continue or grow into a larger concern.

School counselors are another resource for you if you feel concerned about how your children are adjusting. The Aurit Center believes in helping families have the healthiest transition possible, if your child needs support, we offer you this listing of preferred child therapists who you can contact directly for further information.

Children who experience their parents divorce may need some support from a professional. The Aurit Center has a listing of Preferred Therapists who can help.

The Aurit Center’s Preferred Therapists

Some common reactions to divorce that children can experience are:

• distraction, confusion, lack of focus, feelings of uncertainty;
• difficulty relating to others, feeling insecure;
• insecurity around family dynamics, feeling like it is only happening in their family;
• guilt, feeling like they are to blame for their parent’s problems;
• emotionally sensitive, overwhelmed, difficulty with new emotions;
• increase in anger or irritability, feeling short-tempered and out of control;
• increase in health problems, feeling stressed, trouble sleeping; or
• destructive or rebellious behavior, feeling angry and feeling loss.

Click here to read our article:
Recognizing the Effects of Divorce on Children

View Our List of Preferred Child Therapists

Periodic Review

What is a Periodic Review?

A periodic review is an ongoing scheduled time for parents to discuss their current parenting plan, suggest any potential changes, and agree upon any changes. A review can be informal or formal.

An informal review can take place between parents in a setting of their choosing. It may just be a phone call or a meeting at a coffee shop.

If parents agree no changes are necessary there is no need to update those changes into a signed, legal document. If no changes are made, the best practice would be to memorialize the meeting with an email between the co-parents confirming the Periodic Review took place.

If parents agree changes are necessary you can contact The Aurit Center to incorporate those changes via a Parenting Plan Modification, which you will both review and sign. This will legally change your Parenting Plan, without a mediation meeting.

A formal review takes place in mediation, in a meeting which is typically 2-hours long. Parents meet to discuss any potential changes to their Parenting Plan. Scheduling a mediation meeting for your Periodic Review makes sense particularly when it is difficult to calmly discuss things with your co-parent or there has been or may be conflict. We will create your legal documents which you will review and sign.

Are Periodic Reviews required?

Periodic Review is a mandatory clause in all Parenting Plans under Arizona Law. If neither you nor your co-parenting feels the need for a review, you can memorialize your discussion and decision in an email to one another.

It is important that you know when your Periodic review is due. Within your Consent Decree, the wording might look like: “once per year”; “six (6) months after the divorce is final and then every year thereafter,” or “it shall occur during the first week of July.”

What if we have a dispute before our Periodic Review?

You can schedule a mediation meeting if you both mutually agree to attend mediation or would like to modify your Parenting Plan. Per your Parenting Plan’s Mediation Clause, a good-faith attempt at resolving the issue in mediation must be attempted, prior to either parent seeking court intervention if there is a perceived breach of the Parenting Plan terms or a dispute. For many parents, mediation is a valuable tool for maintaining a healthy co-parenting relationship.

Modifying Custody

Modifying custody is a post-decree process for making a change to the custody agreement.

Mediation: Parents can come to mediation to propose a change to their custody agreement. Even when there is considerable disagreement, our skilled mediators at The Aurit Center have helped parents to reach agreement. If you both agree, we can create and prepare for finalization the necessary legal documentation.

Litigation: A petition needs to be filed with court, to include a copy of the current orders the parents seek to modify, detailed facts to support modification, along with a statement of the action the parents are requesting.

Special Considerations

Does Arizona have a provision for the visitation rights of grandparents?

A.R.S § 25-409

Grandparents have the right to visitation over the objection of a parent if:

• Grandparent can overcome the presumption the parent always acts in the child’s best interest; and
• Access to the grandparent is in the child’s best interest.

If the judge determines visitation is in the child’s best interests and all A.R.S § 25-409 requirements are met, then reasonable grandparent visitation may be ordered.

Can I change my child’s last name?

Yes, in Arizona you can file for a change of name for a minor child if you are the child’s parent or guardian, you file in the county where the child resides, the child is 17 or younger, you have proper and reasonable cause for the request, you are not changing their name to avoid debts or defraud creditors and anyone else and you have written consent by all adults who retain legal rights over the minor child.

Does my (minor) child have a right to be heard in a court custody-case?

No. Arizona does not give a child the right to appear in court. However, the court can determine the child’s wishes through other means. It is at the judge’s discretion as to how much or as little weight is given to the child’s wishes in making their determinations and final orders. The courts consider the child’s age, whether or not they want to express their opinion, how they will be emotionally or psychologically affected, and how significant, trustworthy and relevant the information will be in helping the judge to make a decision. The best interests of the children take precedence in court.

Will my children have to be Interviewed by the court?

A judge may interview the child in the judge’s chambers without the influence of either parent. This interview is recorded and sealed. To determine what the child’s wishes are, a judge may assign a Custody Evaluator, assign an attorney to represent just the child, or assign a Guardian ad litem to protect the child’s rights. The child’s best interests take precedence in court.

What if our children are adopted?

When adoptive parents divorce, it has no impact on their adoption. Both parents remain legally responsible for their adopted child.

What if there has been Domestic Violence or Child Abuse in our family?

A.R.S. § 25-403.03

Arizona considers domestic violence to be physical assault, threats, harassment, intimidation, stalking, unlawful imprisonment, trespassing, damage to property, kidnapping, and photographing and secretly watching victims without their consent, among other things. Arizona looks for the following considerations:

• sexually assaulting or causing serious physical injury to a family or household member;
• attempting to sexually assault or cause serious physical injury to a family or household member;
• making family or household members afraid they are about to suffer immediate physical injury, and
• engaging in a pattern of abusive behaviors are serious enough to permit a court to issue a protective order for the victimized parent or child.

Arizona judge’s make the safety of children their top priority. Therefore, parents who commit acts of domestic violence rarely get custody of the children as abuse is contrary to the well-being of the children. T

To determine whether or not there has been domestic violence, judge’s will consider:

• rulings from the courts;
• police and medical records;
• reports form Child Protective Services or domestic violence shelters;
• school records; and
• witness testimony.

If after a review of the information listed above the judge determines there has been domestic violence committed by one parent against the other, the court will apply a Rebuttable Presumption. This means giving custody to the abuser is not in the best interests of the children. To gain custody the perpetrator would be required to meet the following criteria:

• proving their sole or joint custody is in the best interests of the children;
• completion of a batterer’s prevention program;
• completion of court-ordered alcohol or drug abuse counseling;
• completion of court-ordered parenting classes;
• proving the perpetrator is no longer subject to a domestic violence protective order, in cases where the perpetrator is on parole, probation, or community supervision; and
• proving the perpetrator has not committed additional acts of domestic violence against anyone else.

Please visit A.R.S. § 25-403.03 To learn more about the possible implications of child abuse on custody.

What do the courts consider a Standard of Care?

The Arizona Standard of Care provides guidelines for child care facilities and can give you insight into the rules regarding the health, safety and well-being of the children.

Arizona sees an Unfit Parent as one who fails to properly provide for and ensure the well-being of a child.

Will substance abuse by a parent affect custody?

A.R.S. § 25 403.4

Yes. A positive drug test can affect custody in Arizona. A judge can order supervised parenting time.

If the court determines that a parent has been convicted of any drug offense under title 13, chapter 34 or any violation of section 28-1381, 28-1382 or 28-1383 within twelve months before the petition or the request for custody is filed, there is a rebuttable presumption that sole or joint custody by that parent is not in the child’s best interests.

Who has custody of a divorcing couple’s frozen embryos?

In late 2019, Arizona passed a law stating whichever individual intends to develop the frozen embryos to birth shall gain custody of them in the event of a divorce.

Can I get custody if I am on public assistance?

In Arizona, a custodial parent with a dependent child, who does not receive child support, can receive public assistance, through the state-run TANF program (Temporary Assistance for Needy Families). To learn more, you can visit MyFamilyBenefits.com.

How much does a custody case cost?

Mediation: At the Aurit Center, co-parents can meet with a mediator to create a parenting plan, either as a part of a Consent Decree or stand alone. We offer predictable flat fees for either service to support your financial stability at a time when you need it most.

Litigation: There are a number of factors which influence the final amount, to include the extent of the conflict, the need for experts, and how much the attorney charges. If the attorney charges a large up-front retainer and bills hourly, the final amount is unpredictable and could grow to a very large amount in a short time.

How do I deal with a narcissistic co-parent during a custody case?

It is important to note, Narcissism is a diagnosable condition which involves a lack of empathy and a delusional sense of self-worth. Very often people with this diagnosis are manipulative. The major concern when dealing with narcissism in a custody battle is whether they may pursue parental rights as a form of enhancing or creating a power disparity between themselves and the other parent. The concern is a narcissist may primarily pursue child custody, not for the welfare of the kid, but for their own gratification.

Mediation: The Aurit Centers professional family mediators are experts at helping spouses communicate in a way that results in fair and mutually-beneficial agreements. Our mediators guide a balanced process that ensures each person’s voice is heard and respected. Even when conflict is high, mediation is successful and can save stress, time and money while keeping the spouses and any involved children as healthy as possible through the transition.

When you are in mediation at the Aurit Center, we provide you with a list of Preferred Legal Advisors who are Arizona divorce mediation attorneys who support mediation and who will not charge our clients the usual retain and will instead work with our clients for just their hourly fee. This is an opportunity to review your documents with a divorce attorney prior to singing. Our Preferred Legal Advisors can help you feel more secure with your final agreements. We encourage you to speak with a Preferred Legal Advisor at any time in your process.

Litigation: Many people mistakenly believe they need a divorce attorney to represent their interests in court to get a “fair deal”. If you must divorce through litigation, be sure you have an attorney you trust. They will help you prepare and guide you through any court hearings or trials.

How should I communicate with my co-parent if they are uncooperative or hostile?

Having some conflict during a divorce is normal. Even when there is a high level of conflict, spouses are able to reach agreement when guided by a caring, professional mediator. You can help keep conflict low by following the communication guidelines listed below:

• be as kind as you can be;
• use “I” statements rather than “You” statements;
• avoid inflammatory language and blaming;
• avoid making demands;
• make proposals based on what you want or need;
• listen, without judgment; and
• try to understand each other’s perspectives.

What are the most common reasons why a parent might lose custody of their child in Arizona?

The potential for parents to lose custody exists whenever the parents fail to provide a stable and healthy home or fail to take responsibility for their children. Each case is unique and a judge reaches their final orders at their own discretion, but there are some situations that increase the likelihood of a parent losing custody, to include:

• A.R.S. § 13-3623 Emotional, Physical or Sexual abuse; causing a child to suffer injury, allowing a child to be injured, or allowing a child to be placed in a situation endangering their health or well-being.
• A.R.S. § 8-201 (22) Neglect; the inability or unwillingness to provide a child with supervision, food, clothing, shelter or medical care if inability or unwillingness causes unreasonable risk of harm to the child’s health or welfare; or
• A.R.S. § 13-1304 Child Abduction; a form of child abuse involving a parent kidnapping one of their own children, violating a custody order. In doing so they are illegally depriving the other parent of their legal parenting time.

What if we disagree about immunizing our children?

A parent with sole legal decision making authority or sole custody has the authority to make the decision to immunize their children. In this type of situation, it is still necessary to notify the other parent of the intent to vaccinate but the other parent does not have to give their consent.

When parents have joint legal decision making authority or joint custody should not make a unilateral decision which would be a violation of a custody order which can have dire consequences, such as losing custody.

Mediation: If you aren’t in agreement about vaccinating your children, The Aurit Center is here to help. We will guide you both through a conversation to reach agreement about how best to move forward. This process is far less stressful than taking the issue to court. Whenever possible, it is best to avoid an increase in conflict and the uncertain outcome of a prolonged court case. A professional mediator can help reach an agreement you both feel is fair.

Helpful Idea: Before you decide how best to proceed it might be helpful for both parents to meet with the children’s pediatrician. This will help you both to understand the other person’s perspective and help you find room for compromise.

Litigation: Co-parents with joint legal decision making authority or joint custody who can not reach agreement about immunizing their children could eventually end up in court. It is important to keep in mind that this will give a judge the final decision making authority regarding this issue. Likely each parent would try to present a compelling argument as to why their decision would be in the children’s best interest. A judge would listen and based upon their own discretion, decide whether or not the children would be immunized.

In Court

How do I prepare for a court hearing?

Court hearings are only necessary if you litigate your divorce. In mediation, you never have to go to court for hearings and trials which are scheduled based on the court’s availability. Instead, in mediation, you control the timeline and the pace of your process. The Aurit Center can work as efficiently as you like or can move more slowly if you prefer.

If you are not able to mediate, it is important to hire an attorney that you trust. Your attorney will help you prepare for any court hearings.

What is Home State Jurisdiction?

Home State Jurisdiction becomes relevant in interstate child-custody disputes and refers to where a child has been a resident of the state for at least six consecutive months immediately before a custody order was put into place.

Mediation: Our mediation services are 100% online and we are able to work with parents who live long distances from one another to develop a Parenting Plan that best meets their needs.

Litigation: Home State Jurisdiction becomes a factor when determining custody because different states have different laws. Establishing which state has jurisdiction, means establishing which state’s laws will apply to the case.

How can I register our Child Custody Order, from another state, in Arizona?

A.R.S. § 25-1055

If you have a child custody order from a state other than Arizona, you can request the registration of the child custody order in Arizona. You will need 2 copies of the child custody order, once of which must be certified. This can be a complicated process and we encourage you to consult with a family law attorney to register a child custody order in Arizona.

What is Due Process?

Due process means the court must uphold a certain standard to ensure the process is fair.

“[A] parent is entitled to due process whenever a proceeding will determine his or her custodial rights to a child. Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner, as well as a chance to offer evidence and confront adverse witnesses.”

Does the court give preference to mothers?

A.R.S. § 403.02(B)

No, in Arizona, the courts do not favor women over men in child custody disputes. The Arizona courts mandate that they shall not prefer a parent’s proposed [parenting] plan because of the parent’s or child’s gender.

What is a Notice of Hearing?

A Notice of Hearing is a legal notification from the court for the appointment of a guardian. It provides the involved parties with the information they need regarding the upcoming hearing to establish guardianship. This includes the location, date and time of the hearing.

What is a Court Appointed Advisor (CAA)?

When one parent has filed a petition or motion with the court, the court schedules a Resolution Management Conference. At the conference, the court can assign a Court Appointed Advisor who is prohibited from taking any action only permitted by licensed attorneys.

Court Appointed Advisors might:

• interview each party at their home;
• review records, such as school reports, emails, medical records, etc.;
• speak with other interested parties; or
• speak with the child.

The Court-Appointed Advisor is then given the opportunity to testify or to submit a report stating their recommendations regarding the best interest of the child and the basis for the recommendations. The parties to the case are typically responsible for a portion of the CAA’s compensation.

What is a Best Interest Attorney?

When one parent has filed a petition or motion with the court, the court schedules a Resolution Management Conference. At the conference, the court can assign a Best Interest Attorney. This attorney serves in a representative capacity and participates in the case to the same extent as the other attorneys to the case.

A Best Interest Attorney is not allowed to testify or submit recommendations to the Court. The parties to the case are typically responsible for a portion of the CAA’s compensation.

What does a Therapeutic Interventionist do?

A Therapeutic Interventionist (TI) is a mental health professional who provides counseling to parents and their children to resolve problems in an effort to normalize each parent’s time spent with the children. Therapeutic Interventionists use various types of evaluations and interventions to assess family members in order to assist in making child custody and access decisions.

Not all cases require comprehensive evaluations and judges are able to request brief evaluations such as problem-focused evaluations or dispute assessments. On the other hand, reunification, parental polarization/alienation, estrangement, and child maltreatment cases require more than custody and access recommendations.

What is Late Disclosure and is it allowed during a custody case?

Both parents are given a deadline by which they must present all of their evidence. In Arizona courts, if a person fails to disclose information in a timely manner, they “shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or in support of a motion, the information or the testimony of a witness not disclosed. If you have concerns about Late Disclosure, discuss with your attorney to ensure timely presentation.

What is a Reduction of Parenting Time without Notice or Temporary Modification Order without Notice?

Unless there exists a reason such as fear of bodily harm or death, the law requires advance notice of an action of one’s rights concerning one’s children. This is a very serious matter. A judge will not grant the Temporary Modification Order without Notice unless you have a reason such as immediate and irreparable injury, loss, damage or death will result if you give notice to the other party. Someone can request the court issue an order taking away someone’s children without giving them advance notice or the opportunity to defend against or deny the accusations that caused the court to issue the order.