File for Divorce
The sooner you file for divorce, the sooner you can ask for visitation rights. Emergency orders, like the kind you need if your spouse isn’t letting you see your kids, usually must be hinged on a pending lawsuit such as a divorce. You can also ask for visitation under the umbrella of a legal separation or annulment case. The order you receive is temporary, as it lasts only until the overlying case is resolved; however, its terms often carry over into a permanent order or divorce decree.
Motion for a Temporary Order
As soon as you file for divorce, you can file a motion with the court for visitation with your children. Some states don’t make you wait; you can file a petition or complaint for divorce and a motion for visitation simultaneously. You might also have to include a suggested parenting plan, which is an outline or schedule of when you want to see your kids, along with custody terms that are acceptable to you. You’ll have to make sure your spouse is officially served with a copy of your paperwork. The rules for this can vary a little from state to state, but you can ask the court clerk how to go about serving your spouse when you file your documents. If the situation is truly an emergency, such as if something is occurring that might cause your children irreparable harm, you can typically ask for an immediate hearing, usually within 24 hours. Otherwise, when your spouse receives your motion papers, she usually has a period of time within which to file a written response with the court, such as 30 days.
The court may not consider the fact that you’re not seeing your kids to be a legal emergency that warrants an expedited hearing. Unless your children are in imminent peril, the court will probably hear your motion in two to four weeks, but this can vary depending on your state and even your county. The dockets in metropolitan courts are sometimes busier and more jammed full than those in rural areas. Hearings for temporary orders that govern until a divorce is finalized are typically more abbreviated than a full divorce trial. You and your spouse may each have an opportunity to speak to the judge and in some states, such as Georgia, you’re allowed to present one witness. It’s unlikely that the judge will deny you any time at all with your kids, so the resulting order will likely determine when and how you can see them.
Modification of Existing Orders
If the hearing doesn’t go your way, you may be able to file a second motion to ask the court to modify the visitation terms, but this is usually only possible if something fundamental changes after your first hearing when the order is made. This might be the case if your spouse totally ignores the order and still refuses to let you see your children; in fact, you might ask the court to award you custody instead if this happens. Otherwise, changes are generally addressed in your final visitation order, which is incorporated in your decree or judgment of divorce. Most often, however, the terms of your temporary visitation order carry over into your decree.