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AttorneyTom
AttorneyTom, Lawyer
Category: Family Law
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Hi again, what is devorce vs. castody? I understand the concept.

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Hi again, what is devorce vs. castody? I understand the concept. I just would like to know, I guess, how they go together if I filed for custody first and it's in the process, and then my husband files for divorce? Will custody be re-evaluated? Or they're gonna combine divorce and custody? I know he's gonna file for divorce. Should I even bother to file for custody ASAP? Or they will do it anyways in divorce court? Do I have any advantages if I file for custody separately and earlier than him?
Hello. Thank you for your new question and thank you for requesting me. I apologize for the brief delay, as I was not at the computer when you submitted your question.

Divorce dissolves a marriage. Custody does not, unless it's handled in divorce. However, custody matters can be addressed even if no divorce is taking place. If no divorce is taking place, a parent can petition to establish a custody order without dissolving the marriage. They're really two different issues but custody is necessarily handled in divorce matters because the issue cannot really be avoided.
If a custody order has been issued previously, the court may evaluate the issue again during divorce, though it may decline to if the order is recent. If the custody matter is pending, it will generally be handled as part of the divorce.
You definitely want to retain an attorney to protect your interests. He or she may suggest that you seek temporary custody to protect your rights regarding time with the child. However, custody isn't handled on a "first to file" basis and, instead, regardless of who files first, the court should look at the custody matter based on what's good for the child. There should generally be no legal advantage to filing early or filing first, though it can be wise to seek a custody order early to establish one's access rights to a child because, until such an order is established, both parents are legally equals.

Please remember that your rating is for the quality of my work and the information I provide. These ratings are not related to the quality of the law (rest assured, I agree that the law is often lacking). I would be very appreciative if you would rate this answer as "Great Service." Low ratings reflect poorly on the quality of my work. If you have additional questions, please ask them using the "Continue Conversation" feature. Thank you.
Customer: replied 4 years ago.
Yes, I definitely will give you "Great Service" rating, I just need one more clarification. You said "If the custody matter is pending, it will generally be handled as part of the divorce." Say, I filed for custody already and it's pending with my wishes/conditiones, etc. He files for a divorce with his custody conditions and wishes. Which custody file they're gonna look at? Or both? And also if custody matter is already pending, can you file an 'opposite' one during divorce? Because he also has to respond to my custody after he's served, right? Sorry, it's so confusing...
Thank you very much. Sorry I took a few minutes. I had a line of replies this afternoon and I've been addressing each in the order it was received. Thank you for understanding

If the court hasn't ruled on the matter, the two actions could be combined and dealt with as one. It's not really so much that the court looks at his demands OR yours. The court looks at both sets of demands.
With a divorce the spouse who files demands one thing. The responding spouse files an answer demanding what she wants. The court then looks at those demands, the evidence, etc. and enters an order accordingly. That's a very simplified version of the process, but that's basically how it works. With custody, the court makes the decision based on the child's well-being. I would highly recommend retaining an attorney for the matter. It's very difficult to represent yourself in a legal situation because the law is complex and confusing for those without legal training and education. Further, because people are so close to their own legal matters, it's really difficult to represent one's self and make rational, wise decisions due to the highly emotional nature of the matter. If you cannot afford representation, it's also possible to ask the court to order your spouse to pay for your attorney and, if he is able to do so, the court may enter that order. Alternatively, you may be eligible for discount or free services from a local legal clinic. Here are some resources that can be used to find an attorney:
Lawyers.com: http://www.Lawyers.com
Martindale: http://www.Martindale.com
Local Lawyer Referral Services: http://www.abanet.org/legalservices/lris/directory
Local Legal Clinics: http://www.abanet.org/legalservices/probono/directory.html
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