Q: Can I pick up my children before their father goes to prison without custody agreement?

A: You should seek the assistance of an attorney in this situation as you do not want to put the children in harms way. However, so long as there is nothing from the court stating you cannot have custody of the children, then you have precedence over the girlfriend while the father is incarcerated. However, as I stated you will want assistance of counsel on this as it can be a delicate and sometimes heated situation.

A: Given that there is no formal custody order in place, you and your husband both have equal legal rights to your children. That means you do have the legal ability to pick them up, especially with him about to enter prison and planning to leave the children with someone you don’t know or trust. Courts generally prioritize the best interest and safety of the children, and your long history as their primary caregiver adds weight to your position.

Since he's going to be unavailable to care for them, it’s reasonable to take steps to ensure they are in a safe and familiar environment. If you’re worried about conflict or resistance when picking them up, you can involve law enforcement or ask for a welfare check. Let them know the situation and that you’re the children’s mother with no custody restrictions. Officers may be able to help keep the situation calm while you bring your children home.

After you have your children with you, it’s important to file for emergency temporary custody with the family court. That will protect you from any legal issues down the line and establish formal custody before your husband’s incarceration creates more complications. The sooner you take legal action, the better it will be for you and your children’s stability and safety.