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socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 34454
Experience:  Retired (mostly)
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my husbands 14 yr old son recently expressed to his mom ( my

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my husbands 14 yr old son recently expressed to his mom ( my husbands ex common law spouse) that he wishes to live with us. she has custody however, since he expressed that, she refuses to let him come visit us for any amount of time for christmas. there isnt legal stipulations on visting arrangements other than paying child support. is there anything we can do legally to insure that my husband can see his son for the holidays?
Submitted: 3 years ago.
Category: Family Law
Expert:  socrateaser replied 3 years ago.
If the custody orders require that your husband has visitation, and the custodial parent violates the order, then (absent emergency circcumstances), that would constitute contempt of court and would permit your husband to ask the court to find contempt, obtain "make up" visitation, probably obtain a monetary sanction against the other parent (or, maybe some community service) and possibly even permit the court to reconsider custody in favor of your husband.

The problem with these situations is that it is very difficult to prove the frustration of custody/visitation, because there is frequently no one observing the situation except for the two parents, who can be used as a credible and objective witnesses. As a spouse, your testimony would be suspect. The police/sheriff are rarely willing to actually come to the custodial parent's home, and observe and report on the dispute, unless there is already some sort of breach of the peace or physical assault by a party on another.

So, this leaves the noncustodial parent with few options to prove the contempt and violation of the custody orders -- since proof must be "beyond all reasonable doubt."

Thus, if your husband really believes that the custodial parent will frustrate visitation during the winter holidays, then he may want to send a certified letter to the custodial parent, restating the express visitation orders that are potentially in dispute, stating that he understands from her oral statements that she intends to deny access to the child during the holiday season, and that unless he receives written confirmation that she intends to follow the visitation orders by ??/??/???? (give her 10 days), then he will assume that his understanding is correct, and that he will file a request with the court now, to clarify the holiday custody orders.

The point of the exercise is to put the other parent on notice, and then set up a court confrontation before the holidays. Otherwise, it will be too late. Then, if despite all this, the custodial parent still violates the orders, then your husband needs to be prepared to prove it -- which could require hiring a private investigator to observe his attempts to exercise visitation.

I realize that all of this seems absurd, but I can tell you from experience that most of the time, a custodial parent who wants to frustrate custody/visitation, will succeed, because the noncustodial parent cannot obtain the required proof. Consequently, the only way to get a certain win, is to be highly proactive.

Hope this helps.
Customer: replied 3 years ago.

as mentioned earlier, is this redundant considering there isnt a legal document stating his visitation agreement? theres nothing stipulated that he can see his son on holidays nor every other weekend. would this be an assumption anyways considering how the arrangement was previous? and eventhough there is nothing writting stating he can see his son, can we go ahead and write the letter? would she be in breach despite not having scecheduled visits?

Expert:  socrateaser replied 3 years ago.
I'm apparently not on board with all of the facts. Please answer the following questions:

1. Did the father sign an voluntary acknowlegement of paternity and file it with the State?

2. Is the father on the child's birth certificate?

3. Has there ever been any court orders concerning the father and child, whether related to paternity, child support or custody.

4. If #3 is yes, then exactly what are those orders?

Thanks in advance.
Customer: replied 3 years ago.
hes the biological father and he is on his sons birth certificate. there isnt nor has been any court orders
Expert:  socrateaser replied 3 years ago.
Interesting. Under current law, the fact that he is on the BC and as there are no orders whatsoever, your husband could literally drop by the child's home, pick him up bring him to Florida, and the mother would have to then file an action for custody and support in order to obtain the child's return. Conversely, the mother can refuse any visitation, because there are no orders, and the father would have to file for custody and support in order to obtain appropriate orders.

Either way, it would be up to the Alabama family court to make appropriate orders, unless the child were to live in Florida for at least 6 months, at which point Floirda would obtain jurisdiction for custody determinations.

The problem in such circumstances, is that when a parent takes his or her child from the de facto custodial home, the court immediately views the parent with suspicion, because modifying the status quo parenting relationship is deemed not "in the child's best interests.

So, if your husband really wants to deal with this issue, once and for all, then he must hire an Alabama family law attorney and bring the issue to the court for resolution. The court will consider the child's maturity and wishes, as well as the interest in maintaining a stable family and social life, and then make orders. Your husband could get custody -- or maybe just visitation. But, at least your husband would know what his rights are.

At the moment, those rights are pretty much controlled by whichever parent happens to be holding the child's hand at the time that the government gets involved. Which is a pretty fluid means of dealing with everyone's rights and obligations.

For a family law attorney referral, see these links: ABA; Martidale.

Hope this helps.
Customer: replied 3 years ago.

i think im confused.

im not sure what course of action to take.. for him to send a certified letter expressing that hes aware she is refusing to let him see his son and thus take legal action OR

we can pick him up and she would have to file custody.

 

she has custody but nothing stipulating agreement upon visitation. however he hasnt been living at home for a few weeks now.

Expert:  socrateaser replied 3 years ago.
My first comment was based upon insufficient information.

Legally, your husband could simply go pick up the child. However, the mother could get the child and bring him back -- and on and on forever.

Your husband can send a letter threatening legal action if the mother doesn't permit him visitation. But, until your husband actually petitions the court to make custody orders, the letter has no real teeth, because there are no custody orders, and the mother is not violating any law by refusing to permit the father's visitation.

The botXXXXX XXXXXne is that if your husband wants to deal with this once and for all, then he needs to hire a lawyer and petition the court for custody orders. That's the only real solution.
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 34454
Experience: Retired (mostly)
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