If I leave my husband, can I take my child with me?

Posted on Mar 12, 2014 by Katie Carter

If you’re planning on leaving and you want custody, you should be prepared to take the kids with you when you go, especially if you’re afraid that your divorce will be contested.

When a contested divorce is filed with the court, one of the first steps is to schedule a pendente lite hearing. Pendente lite is a Latin phrase that means “while the litigation is pending,” and it’s usually your first time being in front of the judge. The purpose of the hearing is to establish temporary support and custody, so that something is in place to help make sure everyone’s needs are met while the divorce is going on. The judge doesn’t want to listen to evidence about who is to blame for the breakdown of the marriage, though. She just wants to make sure that the bills will be paid and the children will be taken care of.

Of course, anything that happens in this hearing is only intended to be established temporarily. After your divorce decree is entered, you will either live by the terms you agreed on in your separation agreement, or you’ll abide by whatever the judge ordered at your trial.

Since the judge is going to determine temporary custody at the pendente lite hearing, it’s best if you are already caring for the child when you face her. In many cases, the judge will order that the status quo be upheld, so if you already have physical custody of the child, that will likely continue throughout your divorce. There are no guarantees that this is what the judge will order, but that is normally what we see happening. Your child’s father will get visitation, so you should be prepared for that, but you want to make sure that you have primary physical custody of the child, if possible.

You’re probably thinking, “But that’s only temporary custody, right?” Yes, you’re right—at the pendente lite hearing, you’re only establishing temporary custody. Still, temporary custody is incredibly important, because you’re laying the groundwork now for the argument that you’ll make when you face the judge at your trial (or paving the way for the argument your attorney will make when drafting a separation agreement on your behalf). You want to be able to say, “I’ve had primary physical custody during the last year while the divorce was pending, and in that time the children have been incredibly well-adjusted, have had no behavioral problems at school and, in fact, are all on the straight A honor roll.” That kind of evidence can really support your argument that you should keep primary physical custody of your child.

On the other hand, leaving the child behind, especially if you later plan to argue that your husband was abusive or created a generally bad home environment, can be detrimental to your custody case. If it was so bad, the judge will ask, why would you leave your child in that environment? In the judge’s eyes, you have either lied about the conditions at home, or you’re a bad mother, if they were so bad that you had to get out but you left your child behind anyway. Either way, it’s not good for your case. Try to think about things from the judge’s perspective.

If you intend to ask for primary physical custody, you should act that way throughout your divorce by keeping the best interest of the child at the forefront of your thoughts. Leaving the child behind when you leave is a definite no-no for moms wanting to get (and keep) custody of their children.

If you’re anticipating a custody case, it’s a good idea to talk to a custody attorney right away. Call our office at (757) 425-5200 today.