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Should I file for custody before I file for divorce

January 2, 2017 Blog

In situations where couples know a divorce is imminent, one spouse may decide they want custody of the children. As a result, they choose to file for custody before they have filed for divorce. While this is not common in most divorce proceedings, in certain circumstances a spouse may feel as if this is their best option. However, before taking this unusual step, it’s advisable to consult with an experienced and knowledgeable divorce attorney to ensure it will do no harm to your divorce case. If you are considering filing for custody prior to filing for divorce, there are numerous factors that should be taken into consideration.

Temporary Custody Order
In most cases such as these, the spouse seeking custody will confer with their lawyer and ask the court to grant a temporary custody order for the duration of the divorce proceedings. This is done by having your lawyer file a motion with the court, asking that the court grant full custody to you or joint custody and determine a visitation schedule.

Giving Up Your Rights
While some people do choose to go ahead and file for custody before filing for divorce, the vast majority of divorce lawyers generally advise against doing so for a variety of reasons. For starters, if you leave your home after separating and have the child remain with your spouse, the court may view this action as you stating the other spouse is considered a fit parent in your eyes. By doing so, you may be jeopardizing your chances of gaining custody not only immediately, but also in the future. And if you choose to leave your home and take the child with you without the other parent’s consent, they may call the police and accuse you of kidnapping. Due to these risks, it’s generally recommended that you resist the urge to file for custody so soon, and instead trust in your lawyers while the legal process plays out.

Best Interests of the Children
When one parent does decide to file for custody before filing for divorce, the court will first and foremost consider what will be best for the children involved in the case. While there are many factors a judge will take into consideration, some will take priority. For example, they look at whether the children will be able to stay in a familiar and stable environment, such as staying close to schools and other important aspects of social support. Along with this, the court will also look at which parent has been the primary caregiver and has the closest emotional bonds with the children. Ultimately, all of these factors, along with determining which parent has the most time to devote to the overall care of the child, help a judge determine if a temporary custody order will be granted.

Keeping Children Away Until the Divorce
When a couple decides to split up, one of the biggest concerns for both parents is that one spouse will take the kids and not let the other parent have any contact with them indefinitely. For that reason, some parents choose to file for custody prior to filing for divorce. However, if there is no court order in place, both spouses have equal rights to the children, and no parent can take the children and keep the other parent away from them.

Consult Your Attorney
Needless to say, prior to taking any actions regarding custody of your children, be sure to discuss all available options with your divorce lawyer. Because they are experienced and knowledgeable about all aspects of these cases, they can often provide insight into how the court may rule in these matters. Along with this, they will be able to let you discuss your emotions about the case, helping you to calm down before possibly making a critical mistake that could hinder your case.



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