My husband and I have been separated for 4 years and we have had an arrangement the entire time with me having them 5 nights and him having them 2 nights. We are now about to start the divorce process and he has all of a sudden decided he wants them on a 50/50 physical custody split. He is extremely uninvolved in their lives and most of the time, it is his girlfriend that is with the kids on his days. I am concerned he is going to try and keep the kids or pick them up on days that have not been his according to the schedule we have had over the last 4 years.
Your impending divorce/dissolution of marriage is the proper forum in which to resolve custody and visitation issues. It is part and parcel of the process.
Your question indicates that you are totally unprepared for the process; accordingly, you need to hire yourself a good family lawyer. Almost every family lawyer will give you an initial interview at no costs, if only to decide if they want to take your case. That lawyer can explain how fees will be payed, and if your soon-to-be ex can be required to pay them
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Legally, even though you are separated you are still married and there are no court orders ratifying any informal agreements that you have with your husband in regards to timesharing. I advise that you hire a lawyer immediately because you are in a precarious situation. Technically since there are no court orders, he can pick up the children and keep them for a longer period and you will have no recourse since theres no court orders. At least when you file for divorce a standing order comes into place and can be enforced. Unless you have a court order for child support then that would change the analysis but without any court orders on visitation, then any informal agreements you have with him dont mean anything. Once you get a lawyer and file for divorce all of these issues can be resolved.
I agree with my colleagues, since you are both still married, and the family law court has not issued any temporary orders regarding timesharing, there is nothing you can do if your husband decides to unilaterally change your oral timesharing agreement.
While legislation that favored 50/50 as a starting point was recently voted by the governor, some judges favor these types of arrangements. If you and your husband cannot come to an agreement on timesharing, you are going to need to present evidence that the past agreement is in the best interests of the child. Most judges consider the past history of timesharing when determining what the appropriate schedule should be in your case.
It is highly recommended that you consult and hire an experienced family law attorney to explain the process to you and to be your advocate for a timesharing schedule that works best for you. You can find highly rated family law attorney's using the Find a Lawyer tool on Avvo.
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Without an order, yes, he can get them any time he wants. So you need to get your divorce filed, or otherwise get to family court to request temporary orders about custody ASAP. The court can deal with that immediately if you ask.
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