Temporary Child CustodyHaving temporary child custody orders in effect before your divorce is finalized can prevent a lot of headaches. Not only can it help avoid misunderstandings with the other parent, it can also give you some recourse if the other parent doesn't comply with an agreed upon custody arrangement. A temporary child custody order can be established as part of the divorce petition, a restraining order (if your state allows it), or as a totally separate court order. Like the name implies, temporary child custody is not a permanent custody determination. Final custody is determined in either the divorce proceedings or during a custody trial. The following questions illustrate the importance of having temporary child custody orders in place when the parents are no longer living together:
Do you need an attorney to file for temporary child custody? Rhonda's Question: Do you have to have an attorney to file for temporary child custody? Brette's Answer: No. Topic: Temporary Child Custody Question: I have been married for 18 years, and am no longer in love with my husband. We've tried counseling and its not helping our marriage. We have three children (15,12,9). I've told him that I want out but he says that he is going to keep the children and that I can only see them. I've told him that I want 50/50 custody but he wont discuss it when it comes up. Can he keep the children from me before the divorce process has been finalized? Brette's Answer: If there is no court order, you and your spouse have equal rights to your children and he cannot keep them from you. If you are concerned, you can go to family court and get an order of custody and visitation before your divorce which will determine the issue of custody. » Return to top Topic: Custody during a separation Jessica's Question: My husband are separated, and there are no court orders in effect. He has told me many times that he is going to take off with our son. Do I have to let him see our 6 month old? I told him that he could come here to see him, but he will not go for that. I am worried that he will take off with him and not let me see our baby. Brette's Answer: It sounds like you need to head to family court and get an order of custody ASAP. Right now, you both have equal rights to your child. He could take your son and until you get a court order, there would not be much you could do. Go to court and ask for a temporary order immediately. If he contests it, you'll need to have a trial to decide the custody issue. Consulting with an attorney would be a good idea. » Return to top Topic: Preventing Parental Kidnapping Erika's Question: My ex and I are splitting up and he has threatened to take our son and flee if I leave him. What can I do to prevent this. I would like to share custody with my ex, but not if he is going to kidnap our son. Brette's Answer: You need to get an emergency temporary order of custody. If he has threatened to kidnap your child, you need to let the court know this is a concern. If your son has a passport, you need to get it and move it someplace your ex cannot access. You need to talk to an attorney ASAP. Topic: Interference with Custody and Visitation Pam's Question: My ex. has visitation on the week-ends. It has been 11 days since I've seen or heard from my kids, he won't answer the phone or door. We are currently waiting for a ruling on full custody and child support. I'm afraid he will kidnap the kids because I know he knows he won't get custody. I called my lawyer and he said to file for contempt of court which I did. But I'm going crazy and no one seems to care can you help me, what can I do? Brette's Answer: I am concerned that your attorney does not seem to be taking this seriously. He should file an emergency motion with the court. If you have a temporary order of custody that specifically details who should have the kids when, you can contact the police if he is in direct violation of that order if you believe the children are in danger or have been kidnapped. I would suggest you have a serious conversation with your attorney and demand that he take action immediately or you will find another attorney and file a grievance against him with your state ethics committee. I hope this works out for you. » Return to top How can he claim that he has temporary child custody? Tasha's Question: My ex and I have been separated for 7 months. Four months ago, he said that he can no longer pay support. I took the children to his house because I can't pay for child care. After one week he went to the courts to file an order for temporary child custody. There isn't anything signed by a judge and it has not be granted yet. He will not let me speak to the children when I call. I can not afford an attorney right now. What are your suggestions for me? Brette's Answer: It is possible a judge granted him custody of the children, since they had been with him for so long. If a permanent order has been granted to him without any notice to you, you can have it overturned. Go to your family court and ask to see any papers that have to do with you so you can determine what is going on. You might also find out if there is a free legal services agency in your area that can help you with this. If he doesn't pay child support, you need to contact the state child support enforcement office and tell them and ask for it to be enforced. If you are having financial difficulties, you should also talk to your state social services department and ask for assistance. Good luck. » Return to top How can a temporary custody order be changed? Jessica's Question: We signed over temporary custody to the maternal grandparents so that our daughter would have good insurance for surgery if needed, but it turns out that she won't need the surgery. Now the grandparent is refusing to sign over the cancellation papers for temporary custody, and refuses to let her stay over night with me or her father. What should I do? Brette's Answer: Go to court and seek custody. Good luck. » Return to top How long are temporary custody orders valid? Trina's Question: How long is a temporary custody agreement valid? My fiancé has temporary custody of his son, but the ex is threatening all of us. Since the temporary order is almost two years old, I was wondering if it has an expiration date. Brette's Answer: A temporary order usually states on it how long it is valid for, which is usually until the next court appearance. If you are not currently in the middle of a court case, I doubt it is a temporary order and it is mostly likely a permanent order. You may have had a temporary order that was made final at the last court date. » Return to top Can I get a passport for my kids without their father's consent? Christina's Question: I was awarded temporary custody of my son until our next court date. Can I get a passport for him without his fathers consent? I may be traveling soon, my lawyer isn't sure if the laws have changed. Can you let me know if their is a web address I can read about my rights with temporary custody? Brette's Answer: Generally, you need permission of the court to leave the country during a custody case. As for obtaining a passport, you can check the regulations on the US Department of State web site. Can I get temporary custody of my grandchild? Pat's Question: My 19 year old daughter just had a baby, and neither she or the baby's father have no job. They are both too immature to raise our granddaughter and I fear for her. What steps can we take to get temporary custody? Brette's Answer: Immaturity is not grounds for a grandparent to take custody, unless you can offer specific instances of mistreatment. It sounds like the best thing you can do is be supportive and be a resource for her to turn to. There are many women younger than 19 who successfully raise children. Offer to provide child care so she can look for a job. You should also recall how hard it it to pull yourself together after having a baby. Maybe she is even depressed. Offer encouragement. If you feel the child is in danger take action, however keep in mind that the best way to help her is to support her. Good luck. © WomansDivorce.com. All rights reserved.
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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