Who Gets Custody Of The Kids While Divorce Is Pending?

Divorce can affect the whole family. This is especially true when children are involved. One question that often comes up is; “Who gets the children while the divorce is pending?” The answer depends on you and your spouse.

Negotiate Temporary Custody Yourself

The best option is to negotiate the residential schedule for your children with your spouse. The advantage of working it out with your spouse is that you have some control of the outcome. The other option is to have the Court decide for you. A temporary parenting schedule is just that. It’s an agreement between you and your spouse that’s only temporary until the divorce is finalized.

Request a Temporary Custody Order

If the two parents cannot reach an agreement on the children’s residential schedule while the divorce is pending, then a hearing for a temporary residential schedule will need to be set. When this occurs, the Court is to decide on the best interest of the children. The factors are the same as if for a hearing on a permanent plan. These include financial stability of the parents, people that frequent the home(s) of the parents, mental and physical health of the parents, preferences of the children (weight of this factor depends on the age of the children), and other factors. At this hearing, both parties are allowed to testify and cross examine each other. Evidence is allowed at this hearing. I tell my clients to expect social media to show up here including Facebook, emails, test records and so on. With this approach, you lose your say so. You do have your testimony, but the decision is left up to the judge.

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In Tennessee, mediation is required to attempt to resolve the issues of the divorce, including residential schedules of the children. Usually, this occurs after a temporary hearing has been done for the residential schedule. The mediator will speak with you and your spouse separately and try to move the issues in a positive direction with the goal of settlement that works for both parties.

If mediation fails then next step is to set a final trial date. The temporary parenting plan remains in effect until the divorce is finalized or if both parties agree to make a change to the plan while the divorce is pending.