Short answer. Neither parent automatically. The court decides, applying the same rule that governs a pending annulment. Article 62 routes legal separation cases to Article 49, so the judge provides for the custody and support of the common children and for the other parent's visitation, giving paramount consideration to the children's welfare.

What the law says

During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children.

Family Code, Article 62 — Support and Custody During the Case. Read the full provision →

What the law says

The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain

Family Code, Article 49 — Support and Custody During the Pendency of the Action. Read the full provision →

One short article that borrows a longer one

Article 62 is a single sentence, and its whole function is to point somewhere else. Rather than write a second custody rule for legal separation, the Code says that during the pendency of the action the provisions of Article 49 shall likewise apply. So the answer to a custody question in a legal separation case is found by reading the annulment provision. That matters when you are looking things up: searching the legal separation title alone will turn up almost nothing on custody, and a reader can easily conclude the law is silent when in fact it has simply been imported wholesale.

What the imported rule actually provides

Article 49 directs the court, during the pendency of the action and where the spouses have no adequate provisions in a written agreement, to provide for the support of the spouses and for the custody and support of their common children. It sets the standard the court must use: paramount consideration to the children's moral and material welfare, together with their choice of the parent with whom they wish to remain. And it requires the court to provide for appropriate visitation rights of the other parent. Custody, support and contact are settled in one order, at an early stage, and are meant to hold until the case is decided.

Physical possession is not a legal position

The assumption most people arrive with is that whoever is living with the children when the case is filed has the stronger claim, and that a parent who moved out has forfeited something. Neither follows from the text. The provision hands the question to the court and tells it to weigh welfare, not occupancy. Nor does the ground for the separation decide custody: a spouse may be the wholly innocent party in the marriage and still not be the better custodial arrangement for a particular child, and the Code asks the court to look at the child rather than to grade the adults.

Raise it early, and bring evidence about the children

Because Article 49 operates during the pendency of the action, the arrangement can be settled at the outset instead of drifting for the length of the case. What helps a court most is concrete material about the children's actual lives — where they go to school, who takes them, what the monthly costs really are, who has been managing medical care — rather than a narrative about the marriage. If a written agreement already exists, bring it: the court applies Article 49 only where that agreement lacks adequate provisions, so a workable one shortens this stage considerably.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

Related provisions

Note. Statute text quoted on this page is reproduced from the official enactment and is linked to the full provision. The explanation around it is general legal information from Vivas & Nobles Law Office, not legal advice. Whether it applies to your situation depends on facts only a lawyer reviewing them can assess.