Our office often receives telephone calls from distressed parents reporting that their spouse, ex-spouse or ex-boyfriend or girlfriend will not permit them to see their child and they want to know what they can do. The following is an attempt to shed some light on this common problem.
Is there a Court Order, a Divorce Decree or an Order from Juvenile Court, that states that you have custody of your child or visitation at specific times?
Yes, There is a Court Order:
If so, and your Ex is in violation of that order, then the first goal is to obtain their compliance. How to obtain compliance is a strategic decision that depends on your Ex. However, you may need to file a motion with the Court called a Motion to Show Cause requesting that your Ex be found in contempt. If your Ex is found in contempt, you may be awarded attorney’s fees expended as a result of your Ex’s failure to comply with the Court Order and your Ex may be subject to fines or imprisonment. Beyond compliance, you may wish to seek a modification of the Court Order giving you more time with your child or naming you residential parent and legal custodian rather than your Ex.
No, There is No Court Order:
If you are currently married, then you and your spouse are both considered custodians of your child and you both have an equal right to your child. However, if your spouse currently has your child and won’t permit you to see him, you may need to file for Divorce in order to obtain Court intervention. Otherwise, you may be headed for an ugly confrontation with your spouse that puts your child in the middle.
If you are not married and you are the mother, you are considered the custodial parent of the child unless and until the Court orders otherwise. A father has no right of visitation unless there is a Court Order saying so. However, once the father has established paternity and files for custody with the Court, he is on equal footing before the Court when the Court makes a custody determination.
If you are not married and you are the father, you must establish paternity and file for an Allocation of Parental Rights and Responsibilities with the Court. You have no rights to see your child until you have an order of the Court stating so, regardless of whether or not you pay child support. See post http://www.perlalaw.com/blog/what-unmarried-parents-should-know-about-child-custody/ for more information.