Can a Dad Take Custody of the Kids After Being Served Divorce Papers?

By Michael Butler

The general rule is that both parents are entitled to the have custody of their children in the absence of a court order otherwise. If a dad has been served with notice of divorce, he might be able to take custody of the children immediately. The dad may also be able to take custody at a later stage of the divorce proceedings.

State Law

Divorce proceedings are conducted under state law and different states have different procedures. All states, however, determine child custody using the best interests of the child standard. The factors used to determine that standard can vary between states. Generally, courts look at any relevant evidence to determine which parent should have custody of the children and when. All states have laws that prevent a parent from taking custody of the children in violation of a court order. These laws can include civil punishment or criminal charges.

Ex Parte

All states have a procedure by which one parent in a divorce can ask the court for a court order of custody, called an "ex parte" order. If you request the order, you must file an affidavit with the court stating the facts necessary for the order. In some states, there must be an emergency for the court to issue an ex parte custody order. Other states routinely allow ex parte orders at the time a divorce is filed so there will not be conflicts as to which parent has custody of the children before the court can hold a full hearing. Generally, following an ex parte order, the court must hold a hearing withing a specified number of days, if requested by the other parent. If the dad is served ex parte custody orders along with the divorce papers, he may take custody of the kids only at the times specified in the order. For example, if the order states the dad has the children every other weekend, that is the only time he is entitled to take custody of them.

Divorce is never easy, but we can help. Learn More

Temporary Orders

Courts can hold custody hearings to make temporary orders that will last until the divorce is final. Different courts conduct these hearings in different ways. They are, in effect, mini-trials. You and your spouse submit evidence to the court and ask the court to make a decision. In some cases, courts hear from witnesses and follow the full rules of evidence. In other cases, courts will shorten the hearing by asking that some evidence be briefly presented to the court by the parties and their attorneys. A judge can grant a dad custody in a temporary order.

Final Order

When the divorce is final, the court will enter orders of custody. These can include giving full or joint custody to the dad. You and your spouse can agree on how you want the custody of your children to be determined and ask the court to accept that agreement. If you cannot agree, states have different procedures that you and your spouse must follow. Courts often order you to mediation, an evaluation by an expert and parenting classes about the effects of divorce on children. As a last resort, the court will hold a full trial and determine custody of the children.

Divorce is never easy, but we can help. Learn More
How to File for Child Custody in Ohio


Related articles

How to Reverse a Sole Custody Order in Missouri

Provided the existence of certain conditions, a parent can be successful in reversing a sole custody order in the state of Missouri. An important first step in the process is understanding the difference between legal and physical custody, and that modifications of existing arrangements require a showing of new facts coming to light after the original order. Notice must be provided to the other parent, and if the parties cannot agree on a parenting plan, the judge will rule in favor of the modification if it is in the best interest of the child.

How to Get Custody Back of Your Kids When One Party Leaves State Without Going to Court

When parents divorce, the divorce agreement will explain each parent's rights and responsibilities with respect to the children. One parent will usually be named as the custodial parent. The other parent is called the noncustodial parent and usually has visitation, also known as parenting time, with the children. In most cases, a custodial parent is not allowed to move the children out of state without the approval of the noncustodial parent. If a custodial parent moves the children without this consent, the noncustodial parent can file a motion with the court to compel the return of the children.

How to Enforce a Court Order for Visitation in Indiana

Indiana family courts were established to protect children and their families. A child's interests are protected, in part, by ensuring visitation with their non-custodial parent. Unfortunately, some custodial parents repeatedly deny visitation, even when a court has determined visitation is in the child's best interests. To enforce your visitation rights, you will need to document the denied visitation and file a petition for contempt.

Get Divorced Online

Related articles

How to Prepare for a Temporary Custody Hearing

A temporary custody hearing occurs when one person seeks temporary custody of a child pending a final resolution of the ...

What Happens if You Disobey a Court Child Custody Order?

Whether the court has entered a permanent or temporary child custody order, parents are legally obligated to comply ...

A Motion to Vacate Custody Order

In a divorce with children, the court can issue different types of custody orders at different stages of the ...

How to Apply for Visitation Rights

Visitation refers to the right of a noncustodial parent to spend time with her child. The exact procedures for applying ...

Browse by category
Ready to Begin? GET STARTED