Question:

My friend is getting ready to divorce, but his wife keeps threatening to keep his child from him whenever she wants something.

If you are separated but have not yet filed, can you get temporary orders regarding child custody?

Answer:

This is a common issue that presents itself when parties are getting ready to file for divorce.

Unfortunately, until someone files for divorce, the courts cannot get involved.

In order to file a motion for temporary orders (which is common in every divorce case), you need to first file the Complaint or Petition for Divorce. Once this has been filed, the divorce process has begun and your friend now has the opportunity to get into court for temporary orders.

A typical motion for temporary orders sets the ground rules for the divorce process. I explain to my clients that there were certain unspoken rules while they are married — who pays the bills, who picks up the kids, who carries health insurance, etc.

Once a filing for divorce is initiated, the parties struggle to figure out what their roles are. This is why a motion (i.e. a document requesting relief filed with the court that gets you a hearing in front of a judge) is so important in the early stages of the divorce process.

In this motion, most parties address parenting plans, child support, spousal support, health insurance coverage, if someone is going to be moving out, who will pay the bills, etc.

If your friend’s wife is using the children as a weapon by no letting him see them, then your friend should certainly get into court, file for divorce and file a motion for temporary orders.

He has the right to see his children. Moreover, until there is a court order saying so, most states presume that a husband and wife share legal and physical custody over their children. They still have equal say!

Remember, I am unable to provide you with anything more than tips on your situation, so please consult a domestic litigation attorney in your area to obtain specific advice as to the laws in your state and how they impact your potential case.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, contact Cordell & Cordell.