How to Get Temporary Custody and Visitation Set Up

**danny7985** · 04-29-2012, 01:43 PM

My question involves a child custody case from the State of: Indiana

I know someone who is currently separated from her husband. They have been separated for 3 months now. She asked him to leave and he moved out. The children still live with her. She lets him see the kids whenever he wants and never says no to him. Though he randomly flips out and says that she can not see them again. He has before said to her that she can't come pick up the kids when originally planned because he is mad at her, and he did go through with it.

As of right now she has no funds for a lawyer whatsoever. What she is wanting to do is get temporary custody and visitations set up so that he can't keep the kids from her. She wants temporary visitation set up as well because she does not want to keep the children from the father. As of right now they are not legally separated. Do they need to be legally separated first?

Ok so my questions are how does she go about doing this?
Where does she go to get the paperwork for temporary custody? How does she go about doing this without a lawyer?
How does she go about becoming legally separated if that is in fact what she needs to do first before filing for temporary custody?

Thanks for reading.

**aardvarc** · 04-29-2012, 02:06 PM

So long as they are still married, they both enjoy equal rights regarding the children. How that plays out in practice is this: whomever has the children in their care, they can KEEP the children in their care until there is a court order to the contrary. If they are amicably exchanging the children back and forth, that's a good thing - right up until the moment when one parent says "I'm keeping them". If that happens, the OTHER parent is immediately behind the 8 ball and can do little to nothing short of physically "taking" the children, grabbing them and stuffing them in the car and driving away (traumatic on kids and NOT recommended) UNTIL they have a custody order. Lots of married yet "not together" parents make the mistake of thinking that all they have to do is call police to get their kids back, but the legal reality is that without a court order to the contrary, police have no lawful authority to tell one parent to give the children to another parent, since under the law they BOTH have equal rights. Police will simply allow the parent currently in possession of the children keep them, and tell the other parent to get to court to resolve the issue. Problem here is that by the time court rolls around, the children have been in the care of the other parent for a while, and courts are generally reluctant to take the children away from whichever parent has been caring for them.

To initiate a legal separation, mom will need to draft a petition for separation, serve dad a summons, and file her petition and summons with the local family court. Even if she plans to do this pro se, she REALLY needs to at least have a consultation with an attorney, as separation can be complicated by things like custody and visitation, alimony, child support, who's going to live in the house, pay the mortgate, and lots of other things that mom needs to make sure are covered. Have her check the website for her local Clerk of Court - many have excellent self help guides and the forms she'll need to complete the various tasks.

**Dogmatique** · 04-29-2012, 02:09 PM

It's usually best that the party posts themselves, but there is one question I do have - why doesn't she just file for divorce?

She can also read this

**danny7985** · 04-29-2012, 02:24 PM

Yes I am well aware that the father of the children does have the legal ability to keep the kids from the mom. That is the reason I have started this thread. Child support and bills are NOT concern right now. The only concern right now is making sure that both parents have guaranteed rights to see this kids.

Is the city clerk where she needs to go to to obtain the paperwork for separation and temporary custody?

The reason she hasn't filed divorce just yet is because she does not have the funds for a lawyer at the moment and since they do not agree on custody she wants to make sure she has a lawyer for that.

Thanks for the input I really appreciate it.

It is however only a $129 dollar fee to file for divorce. I am sure she can swing that. Should she get the divorce filed instead of legal separation? Can she still attempt to get temporary custody with a divorce filed instead of separation?

**Dogmatique** · 04-29-2012, 02:24 PM

Both parents DO have guaranteed rights to see the kids.

What she's asking for is something different. She wants a schedule, a plan, of specific days and times. The local court house will have the forms if they aren't available online (many are).

**danny7985** · 04-29-2012, 02:30 PM

Quoting Dogmatique

Both parents DO have guaranteed rights to see the kids.

What she's asking for is something different. She wants a schedule, a plan, of specific days and times. The local court house will have the forms if they aren't available online (many are).

What you just said really confuses me. Because I know that the police have no authority to force him to return the children without a court order. And I do not realize how that what she is asking for is something different. Could you please elaborate?

**Dogmatique** · 04-29-2012, 02:37 PM

At the present time, both parents have equal rights to the children. The police do not have any authority because there are no custody orders in place - and even if there were orders in place, the police rarely get involved, saying it's a civil matter and to thrash it out in court.

Mom is asking for a parenting plan, for custody to be decided (who will be the primary parent, or will they have a 50/50 timeshare, etc.,), child support, all of that.

As a practical matter, it's often easier to accomplish the above by filing for divorce and asking for temporary orders pending the actual custody hearing.