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Who has custody before a formal court order?

On Behalf of | Feb 3, 2020 | Child Custody

When you decide to file for divorce, everything is up in the air. Until you get court orders, there is nothing legally stating who owns what, who lives where and who has custody of your children. It can take some time for the court to make determinations on all of these issues. You may wonder, then, who has custody of the children?

According to MassLegalHelp.org, until you have an order from the court regarding legal custody of the children, nothing changes. You and your spouse both retain all rights to the children. You can both take physical custody of them and make decisions regarding them.

If there is abuse or the children are otherwise at risk, you may be able to seek temporary orders, which the court will push through quickly to provide you with legal custody orders until the final orders come through during the divorce.

In general, though, you both retain full rights to the children, meaning that if your spouse moves out and one of the children wishes to go with him or her, you have no legal recourse to prevent that from happening. You need a court order to do anything. Law enforcement cannot do anything for you because this is a civil matter that requires the court to make a ruling.

It is important that you understand this because withholding the rights of the other parent during the divorce process prior to a court order could hurt your case for custody. If your spouse explains that you have kept the children from him or her, the court may consider this when creating the final parenting plan.