How to Get Temporary Custody and Visitation Set Up

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.

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.

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

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?

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).

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Quoting Dogmatique

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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).

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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?

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.

Ok great thanks, well then I will let her know that it would be better to file for a divorce first before asking for temporary custody.

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Quoting Dogmatique

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...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....

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Though this confuses me. If there are orders in place are the police not obligated to enforce them? I do recall when I was a child and after the divorce was final my mom refused to let me see my dad during a scheduled, court ordered visit with him. He called the police and they cam out and told her she had to let me go with him.

Nope. The police rarely get involved with custody/visitation. Most of the time they'll tell the parents it's a civil matter; the parent then takes the other parent to court for contempt.

But ok so basically as of right now the conclusion to this thread would be that right now would that it is best for her to go ahead and file for divorce and temporary custody right now.

Now my next question is after she files for divorce when can she file for temporary custody?
Can she file for temporary custody the very same day she files for divorce?
Or does the need wait for something, maybe does she need to wait for the courts to recognize that she filed for divorce?
Or does she need to wait for a court date after she files for divorce or something like that?

No offense danny, but this is why it's difficult talking to a third party.

Is there a reason she can't sign up herself?

(Fwiw, most of the information you've just asked can be found online with a quick Google search)

She is planning on it, she's just got alot going on right now, kinda busy.
Is there any particular information that I have not included that you would like to know?

And another question I just thought. She wants to tackle the temporary custody without a lawyer and the permanent custody with a lawyer. So if she files for divorce and temp custody and visitation by herself, can she wait until she has the money to the permanent custody thing? Or is it that once she files for divorce that the courts will push for things to get taken care of? I guess what I am asking is once she files for divorce and temporary custody can she delay the permanent custody until she has the funds for the lawyer?

btw as far as the divorce is concerned, the only thing there is to settle is the children. No property or anything like that. What little they do own has already been settled between themselves. I am only mentioning this because I don't know if that will affect how long she will be able to delay the permanent custody hearings.

But ok now I will go ahead and have her sign up on the forum so you can ask any questions you may have directly to her.

Thanks, I appreciate your help.

hello....i am the one in need of help! I want to know what I can do or what I have to do to get things started and in play so that he can not threaten to keep the kids from me! I have another child from a previous relationship that I have soul custody of and I have court orders and know the police will not get involved! I know that he is gonna fight every step of the way through the divorce and I need advice on how to get this started!