In most states, if a parent has a reasonable apprehension that the other parent will take their child or children for his/her own use, the parent may be able to file a motion for child custody pending divorce. The goal of these motions is to continue to have time with the child and to have visitation time. These motions generally have very little merit however.
Divorce and custody do not have to be mutually exclusive. As long as the divorce and custody process moves along in a timely manner, the court should find that it does not matter whether the parents are separated or not. But if there is a temporary separation, the courts must follow the Uniform Residential Rules to determine child custody status.
A parent who has physical custody of the child can request this while the divorce is being handled, said a known divorce attorney. This means the child lives in the home of the parent. But some states allow custody to be shared by one parent while the divorce is being processed. The URRs state that the best interest of the child must always be taken into consideration.
When a child is removed from the home of only one parent because of abuse or neglect, then the custody pending divorce motion will be necessary. It would also be necessary to file an action to terminate joint physical custody in such a situation.
The courts have found that when the father and mother have been involved in a domestic dispute that resulted in physical harm to the child, such as physical abuse, it is possible to terminate joint physical custody and the right to visitation. The courts need to consider many factors before they make a determination about joint physical custody and visitation.
If the child is located outside of the United States, and the parents contest whether or not visitation should be terminated, then it is necessary to make certain the custody motion is filed within the proper court jurisdiction. The mother must file for joint physical custody while the father files to terminate joint physical custody.
In most jurisdictions, the court will issue a custody judgment after a trial. This custody judgment usually states the date and time that the child will spend with each parent. It is important to note that the court may order that the child live with either parent.
It is very important to maintain contact with the child even if it is going to be with a third party. The courts cannot be sure if the child will grow up and stay with the parent. It is vital that the child and the other parent remain in constant contact to be able to predict whether or not the child will make the right decision in regards to its future.