Do I Have to Get a Divorce to Have a Judge Decide Custody and Visitation?

You may have a custody and visitation issue without also having a divorce issue. Sometimes this happens when a couple, for whatever reason, decides to stay married but come up with a way to share responsibility for the children. Other times, it happens because mom and dad were never married but have children in common.

This scenario is relatively common. Since a marriage isn’t required in order for a man and a woman to have children together, a divorce is not required for a custody, support, and visitation order to be entered.

Usually, this happens in the juvenile and domestic relations (J&DR) court where the child resides (and has been residing for at least 6 months prior to filing). If you go to the clerk’s office, you’ll be able to get access to the specific forms you’ll need to file, and you’ll also probably get a little help from the clerks themselves. Typically, we advise our clients to file for both custody and visitation at the same time, because, if you don’t, the judge doesn’t have the authority to order visitation. So what happens if the judge decides that your child’s father should have custody? If the judge doesn’t have the authority to order visitation, you could really be up a creek without a paddle.

If you find yourself in juvenile and domestic relations court, I have good news for you and I also have some bad news. The bad news is that juvenile court is very slow, and it often takes months before you can actually have a hearing to determine your custody and visitation arrangement. This can be a huge problem, especially if he’s not paying support at all and you’re trying to make ends meet on your own, or if things are really ugly between the two of you and you’re having serious problems reaching agreements about custody and visitation on your own.

The good news is that it is often very possible for women to represent themselves in juvenile court without an attorney. These courts typically lack the formality of the circuit court and are friendlier to pro se litigants (people representing themselves without attorneys). It’s easier to get answers from clerks and guidance on filing the proper forms. And, worst case scenario, if the judge hands down a decision that you don’t like, anything decided in juvenile court is automatically appealable to circuit court! I don’t really recommend representing yourself in circuit court, though it is possible, so you would be able to have a “do over” and also hire an attorney to represent you before you appeared in circuit court.

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