Who Gets Custody While a Divorce is Pending?

Divorcing by itself is hard, but divorcing when you have children under the age of 18 living at home is even harder. Unhappy couples want to live under separate roofs but suddenly they wonder, “Who gets custody of the kids while our divorce is pending?” There isn’t a single answer that applies to all couples – the right answer has much to do with the circumstances of the couple.

Questions we’d ask a new client who is getting a divorce:

  1. Do you both work full-time?
  2. Are one of you a stay at home mom or dad?
  3. What is the current childcare arrangement?
  4. Who picks up the kids from school?
  5. Who drives the kids to extracurricular activities?
  6. Who handles homework and bedtimes?

For some couples, the answer to the child custody question is clear. For instance, if the dad works full-time and travels a lot for his job and the mom stays at home, it’s best to keep things as they are. If both parents work full-time and they have hired help or a grandparent who pick up the kids from school and drives them to their extra-curricular activities, it may be best to find a way to keep the arrangement as it is.

This could mean one parent moving out, but staying very close by and both parents switching weeks with the kids but trying to maintain as much continuity as possible. It all comes down to what makes sense and what’s best for the children. Generally, if something’s working, judges are hesitant to interrupt the status quo because they want the children’s lives to be as stable as possible – if that’s practical.

Temporary Child Custody Orders

We want parents to be aware that if they move out of the house before they have a temporary child custody order in place, it sends a strong message to the court that the other parent is suitable to have the kids most of the time. Our advice is to NOT move out until you have obtained a temporary custody order, one that expresses your future intentions, especially if you are seeking primary or joint physical custody in the future.

Going back to, “Who gets custody during a divorce?” It depends. If the parents can agree, it all has to do with their agreements, but this should still be incorporated into a temporary child custody order while the divorce is pending in court. If the parents are fighting over custody, the solution is the same: get a temporary custody order.

Without a temporary custody order, there’s no guaranteeing what will happen. By establishing a temporary court order, parents are getting their arrangement in writing and it’s enforceable in court if one parent refuses to comply. It’s the best way for parents to protect themselves in case the best intentions somehow fail.

Need divorce representation in Newport Beach? Contact Burch, Coulston & Shepard, LLP to schedule your free initial case evaluation.

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