Who Gets the Kids While Custody Is Being Decided?

Divorce can sometimes be a disorienting process, particularly for parents and their kids. Sometimes parents are also unaware of who should take custody of the kids during the divorce, or they can’t agree on who should temporarily be in charge.

If you and your spouse are still living together during the divorce, you both will share custody of the kids. Custody doesn’t become an issue until one of you moves out or one of you seeks an order to help the move out process along.

However, if one spouse moves out of the marital home and leaves the kids with the parent in the marital home, they have created a situation called “de facto” custody. No court order is in place, but for all points and purposes, the spouse in the marital home has custody of the kids. Be aware that by leaving, the spouse has set a precedent with the court indicating he or she is comfortable with their kids living with the other parents while he or she lives elsewhere. If you do end up moving out of the house, maintain as much visitation time with your kids as possible. A judge will often look for patterns when deciding custody and visitation because they want to offer kids consistency whenever possible.

If you don’t want this to happen, you or your spouse could file a motion with the court to set a temporary custody arrangement in place until a judge can decide the issue on a more permanent basis. In most states, you can even do this before you file for divorce. Temporary orders will govern where your kids live and when parents get visitation rights until the divorce is final and a parenting plan is established in the terms of your divorce.

If you move out and take your kids with you, you will need a court order first. If the divorce is contentious, your spouse could file kidnapping charges against you, and you could face federal charges. Likewise, a judge is unlikely to see this move in a favorable light. The only exception is if you are in an abusive relationship and you’re taking yourself and your children to safety.

If you have questions about the divorce process, talk to one of our Dutchess County divorce attorneys as soon as possible. We can offer you skilled and experience advice regarding your best course of action during the divorce. The decisions you make now could have a direct impact on your relationship with your children, so make sure you are fully informed about your options.

Contact us at (845) 605-4330 or fill out our online form to schedule a free, confidential consultation with us today.

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