Child Custody Petition: Getting Temporary Custody Before a Divorce Is Finalized

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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When you file for divorce, your biggest concern is likely to be your children. You might wonder who they will live with, or worry about how often you’ll see them.

To put your mind at ease and settle some of these questions, the best thing to do is to ask the court to make a temporary custody order for the remainder of the divorce proceedings. To do this, you or your attorney will file a motion and ask that the court order custody to you or jointly between you and your spouse and set a visitation schedule.

To make a decision about who will get temporary custody and how much visitation time the other parent will get the judge will consider what would be in the best interests of your children. There are several factors that will influence the court when it makes this decision. Some factors might include:

  • Who was the primary caregiver, which is the person who took care of most the children’s day to day needs?
  • Who has more time to devote to the care of the children?
  • Who has closer emotional bonds with the children?
  • Who is remaining in the family home or staying nearby, where the children can remain in a familiar and stable environment close to school and social support structures?

During a divorce, both parents, regardless of gender, stand equal before the court; the judge won’t automatically award temporary custody to the mother. In fact, in many areas joint custody is the presumption where both parents are fit to care for the children, which means that the parents share custody.

Asking for temporary orders protects you and your children, and starts you and your children on the road to stability during a very unsure time. It also provides a framework within which you and your spouse can cooperate until a final plan is put into place.

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