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socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 37824
Experience:  Retired (mostly)
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My boyfriend has a daughter with his wife. They have been ...

Customer Question

My boyfriend has a daughter with his wife. They have been separated for about 2 1/2yrs when she began not coming home. She disappeared for about a year, seeing her daughter only twice in 9months at 1 point. When he finally reached her last July to find out where to send the divorce papers, she found herself a lawyer who advised her that if she wanted to keep the house or profit from it during the divorce she should move back in! She was there until the end of last Sept. when he called the cops because she was threatening to take their daughter. The cops told her she could take his daughter to her parents overnight, but could not return to the house. His wife has had their daughter since then and is very sporadic about letting him have her. They have been attempting a dissolution, but she always finds some way to drag her feet. We have since found out I''m pregnant and he is telling her today. We want to know what he can do if she refuses to let him see their daughter out of spite.
Submitted: 8 years ago.
Category: Family Law
Expert:  socrateaser replied 8 years ago.

This post is worded as if I am writing to the parent, rather than his girlfriend. No disrespect intended.

You need to file a motion to estalish custody/vistation. Then once the court orders it, if the mother refuses to cooperate, you can move for a contempt order which could land mom in jail for a few days or have her picking up trash on the side of the road.

However, when a child has been separated from a parent for a long period of time, the child usually isn't much interested in seeing that parent, except out of initial curiousity. So, you could find yourself with very limited custody and your daughter may not want to see you.

What I'm saying here, is that this could turn into an expensive war with nothing good to come of it. The most effective way to get past this is to try to get the other parent to want to cooperate in the child's best interests. This isn't always easy, and it may requires that you swallow your ego and your sense of personal justice -- because you may find yourself begging for custody time. But, it can frequently produce a superior result to a fight.

I'm only telling you this last info, because you have been estranged from this child for a long time. If this weren't the case, then things would be much easier to resolve.

PS. I wouldn't be so quick to tell the other parent that you're having a new child with another woman. It may just make things unnecessarily difficult.

socrateaser and 4 other Family Law Specialists are ready to help you
Customer: replied 8 years ago.
The problem is that I am in fact 6 months pregnant and since we have been trying to keep the peace, none of his children know. She has been known to just drop by, so I do not go to his house and I do not see his children.
Customer: replied 8 years ago.
The problem is that I am in fact 6 months pregnant and since we have been trying to keep the peace, none of his children know. She has been known to just drop by, so I do not go to his house and I do not see his children. He actually sees his daughter often, thanks to his soon to be ex father in law. His child's mom is living with her parents again and is never home with his daughter.The grandfather calls him to get his little girl once or twice a week.When his wife disappeared for a year the little girl lived with my boyfriend.She also calls him everyday.
Expert:  socrateaser replied 8 years ago.
Then get your custody orders in place and if the other parent violates them, move for contempt.
Customer: replied 8 years ago.
Ok. Last question:He was told by one attorney that divorce had to be filed before custody papers could be. Is that true?
Expert:  socrateaser replied 8 years ago.

Parents have equal rights to custody of their children absent a request to the court to determine custody. There is no legal impediment to petitioning for custody while still being married, but it would be rather unusual to do so. Most attorneys would have to research the procedure.

I don't know why you're contemplating this process, and I"m not gonna ask.Cool

Customer: replied 8 years ago.
Because even though they both have equal right to his little girl right now, the police department here says she has the right to refuse him and they cannot help. He is worried about not being allowed to see his child while waiting for the divorce. I don't understand why this is a weird situation to be inquiring about and why you're "not gonna ask" if it will help answer my question
Expert:  socrateaser replied 8 years ago.

I thought maybe you had something you didn't want to disclose.

The reason why the police cannot get involved is because there is no court order for custody in place -- not because the mother can refuse. As a counterexample, if the mother were to die today, the father could go to the house and take the child and the police would be unable to stop him even if the grandparents disagreed.

Because there's no court orders in place.

Customer: replied 8 years ago.
Ok. Thank you. I thought you thought I was being ignorant... I was just trying to understand his rights since neither of the parents seem to have anymore right to refuse the child than the other. She came over friday night to move more things out of his house, she was then picked up by a girlfriend, left her truck there and left her daughter there. Now she has been unreachable since then. She keeps leaving him messages that she'll be over soon to get her, but then never shows up. (She said she'd be back to get her Saturday morning and still hasn't shown up) So, it's my understanding that when she does finally show up-he can refuse to let her take the little girl back. Is that correct? I swear this is my last question, I can tell I'm being a bit frustruating. I really appreciate your help, It's just so hard to seem him hurting over this and he's not sure where to turn or what to do... Thanks again
Expert:  socrateaser replied 8 years ago.

The court would probably view the removal of the child from his/her status quo home and parent after such a long period of time as child abuse -- maybe even criminal abuse -- so be careful.

The correct way to handle this is to get a temporary restraining order preventing the other parent from removing the child from the county without the other parent's consent or further orders of the court.

Customer: replied 8 years ago.
Thank you...wouldn't have thought of it that way.
Expert:  socrateaser replied 8 years ago.

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