Do you have a better chance of getting temporary custody if the child is in your care when you file for divorce?

men's divorce lawyer Rachel BrucksQuestion:

Does the person who files for the divorce automatically get temporary custody of the child if they have the child in their care at the time of filing? My wife ran off with our child and filed for divorce.

We have since signed a parenting plan, but I heard that even with a parenting plan the police cannot enforce compliance since it hasn’t been filed with the court. Is that true?

Answer:

I do not practice in Missouri, so my advice for divorce is limited. Therefore, I cannot inform you as to the specific laws of Missouri, but Cordell & Cordell has divorce lawyers in Missouri who would be happy to set up a consultation with you.

Generally, a person is not awarded custody of their child simply because they filed for divorce while the child was in his or her care. Courts do not impose such automatic determinations of custody; that kind of black-and-white rule would only encourage child abductions by parents. Instead, Courts take into account a wide variety of evidence when determining custody, with the decision resting on what is in the best interest of the child.

If the “parenting plan” you signed with your ex-wife is merely a written agreement signed by you and/or your wife, and is NOT also signed by a judge, the attorney you consulted with is right in regards to supplying advice for divorce. Police officers generally cannot force compliance with any document that is not a Court Order signed by a judge in your state.

If you want a custody determination that can be enforced by the police, you will need to have a hearing in front of a judge and get a Court Order. Make sure to get a certified copy of the Order so that you can present it to the authorities if that becomes necessary.

Different states use the term “parenting plan” differently, but in some situations this is a document you present to the Court when asking the Court to make a decision about custody and visitation. In other words, it is your idea of how custody and visitation should be shared.

The judge uses this document as evidence to determine what each parent is asking for. Because the judge’s determination is primarily based on the best interest of the child, and not simply the parents’ wishes, the judge may choose to incorporate one, both, or none of the parenting plans into his or her final Order. That is the best advice for divorce I can presently supply.

Generally, so long as both parents are in agreement, and the plan is in the child’s best interest, the judge’s Order will mirror the submitted parenting plan.

 

Rachel A. Brucks is a Staff Attorney in the Fort Worth, Texas office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Brucks is licensed in the state of Texas. Ms. Brucks received her Bachelors degrees in English and Political Science from the University of Texas at Arlington. She received her Masters in Literature and Gender Studies from Texas State University, San Marcos; and received her Juris Doctor from Southern Methodists University, Dallas.

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