Child Visitation Rights Before Divorce

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Most Common Family Law Issues:

When are Child Custody and Visitation Decided?

Child custody and visitation rights are finalized in the judge’s divorce decree. However, you can resolve custody disputes in several ways before a divorce is ordered.

Who Decides What the Custody and Visitation Arrangements are Before a Divorce is Finalized?

If you can agree to a de facto custody arrangement, you and your spouse are responsible for custody decisions before a divorce. Do not agree to a de facto custody arrangement unless you are comfortable with it. Judges commonly rely on de facto agreements when awarding custody in divorce decrees.

If you cannot mutually agree on a custody arrangement, the judge can award custody in a temporary custody order.

How is Child Custody Handled Before a Divorce is Finalized?

Maintaining the Status Quo

Sometimes, spouses can amicably live in the same home during a divorce. A spouse may move into a spare room or onto the couch. When both spouses live at the same residence, there is not a custody dispute. If you can cope with this situation, you do not have to make custody decisions until your divorce is final.

De Facto Custody

If you move out of the family home without a court order, you give your spouse “de facto” custody. In other words, you are allowing your husband or wife full custody of your children.

You also can negotiate a shared parenting agreement with your spouse. Sometimes, spouses can amicably agree to a parenting arrangement. If possible, put this arrangement down in writing—even if it is a series of emails or texts. Make sure that your parenting arrangement is clearly stated in these communications.

Giving your spouse de facto custody can cause difficulties later on. The judge must consider the best interests of the child when awarding custody. He or she may maintain the de facto custody arrangement, arguing that your children will benefit from consistency in parenting. Additionally, it can be difficult to argue that your spouse is an unfit parent if you voluntarily gave him or her full custody.

Temporary Custody Orders

If you and your spouse cannot agree on a voluntary custody arrangement, you can file a motion for a temporary custody order. The judge’s custody and parenting order will be enforced until your divorce is finalized.

Once your divorce petition is filed, you (or your lawyer) can file a motion for temporary custody. Your spouse will receive a copy of your motion and a hearing will be scheduled. Typically, temporary custody hearings are scheduled within a few weeks. Emergency hearings are scheduled more quickly.

At the hearing, you and your spouse will testify about custody and parenting issues. The judge may ask you questions about your situation. Depending on the complexity of your case, the judge may make an immediate decision about custody rights.

What Should Custody Mistakes Should I Avoid?

Again, divorces can quickly become heated. You need to be particularly careful when children and custody issues are involved. Your decisions can impact your right to parenting time and custody.

Do Not Move Out with Your Children Unless You Have a Temporary Custody Order

You should never take your children and move out of the family home without a court order. This behavior may result in criminal charges, including kidnapping. Additionally, taking your kids without a temporary custody order may damage your credibility with the judge. If the judge thinks you are unreliable or untrustworthy, you may lose custody rights.

However, there is an exception to this rule. If you are a victim of domestic violence, you can (and should) take your children and leave.

If You Want Custody of Your Children, Do Not Give Your Spouse De Facto Custody.

Again, judges tend to follow de facto custody arrangements. They typically believe that consistency is in the best interest of the child. Therefore, if you want custody of your children, do not move out of the home and give your spouse full custody. Instead, file a motion for a temporary custody order.

Don’t Give the Judge Reasons to Question Your Parenting Abilities.

When a judge awards custody, he or she must decide what is in the child’s best interest. Reckless and impulsive behavior can cause a judge to question your parenting abilities. Avoid altercations with your spouse, illegal activities, and any other behaviors that can damage your credibility.

Can a Lawyer Help Resolve Child Visitation Disputes?

Divorce and child custody lawyers can help resolve difficult custody disputes during a divorce. Child custody laws vary from state-to-state and are often complicated. A family lawyer can help you understand your rights, file a motion for temporary custody, and guide you through the difficult divorce process.

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Last Modified: 07-25-2016 04:52 PM PDT

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