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Can You Get Child Custody While Divorce Is Pending?

Young unhappy family discussing divorce, child support, and child custody.
By Lisa M. Schaffer, Esq. | Last updated on

Divorces can be very complicated and messy, taking years after the initial separation to become final. Without any agreement in place, both parents have full custody of the child and each has visitation rights without any legal restrictions -- just as they had prior to the separation.

This can get complex and contentious, and potentially harmful to the child and to your future custodial rights, since judges frown upon one parent interfering with the relationship of the other parent with the child. Just ask Angelina Jolie and Brad Pitt. Though permanent child custody is determined in the final divorce decree, there's no need to wait that long to formalize a temporary child custody agreement.

What's In a Temporary Child Custody Agreement?

Once separated, whether legally or informally, many parents seek to create a shared temporary custody arrangement. The arrangement should always be in the best interest of the child, formalized in a written agreement and signed by all parties. It should cover all of the topics of a permanent custody agreement, including:

  • Physical custody schedule
  • Statement regarding legal custody, either joint or by one parent
  • Visitation schedule, when the child is in the physical custody of the other spouse, and any requirements during those visits
  • Firms rules on specific parental responsibilities, including financial and behavioral

How to Draft the Agreement?

Now that you know what's in it, you may want to know how to create it. This can be accomplished either through the parents alone, the parents with the help of a mediator, or through each parent's attorneys.

Optimistically, this agreement can be created between the parents, if they are getting along. Even if the parents can agree to terms together, it should be formalized be a neutral collaborative lawyer. But let's face it, the separation happened for a reason, and the topics covered in the agreement are emotionally charged and potentially even the source of the separation.

If you are having trouble agreeing, but have hope that it could be accomplished with a little help, the parents can hire an experienced mediator to come in and assess the situation and offer a solution. Mediation bills can be shared, since only one collaborative lawyer is being hired. If, however, there is no way you can sit down with your future ex, each parent should hire a custody lawyer and hammer out these details, either through a negotiation or through litigation.

The separation is probably in its early phase when this agreement is made, and so modifications to these temporary agreements are quite common as each parent, and the child, finds his or her "new normal". The final temporary custody agreement often serves as a template for the final custody agreement, and therefore this is a great time to make adjustments that are in the best interest of the child.

If you are thinking of separating, or are in the process of separating, contact a local child custody attorney, who can listen to your unique situation and offer you advice on custody issues. If both parents would prefer to work together to create a temporary solution, contact a local collaborative lawyer to either help with the mediation process or formalize your agreement.

Child custody could be the most difficult aspect of your divorce, for both parents and children. Advanced preparation will hopefully make everything run smoother.

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