Custody in separation agreement


#1

If custody is not court ordered then both parents have equal rights to the child/children. You said you have an agreement but that your ex didn’t request visitation with your child until after the court enforced support…now he is taking visitations as they were put in the agreement that you both signed. It sounds as though you have primary custody and the father has visitations. What are you wanting to change custody to?
If you are concerned about your child’s safety you will need to modify child custody on grounds for domestic violence. I am curious as to why you would sign an agreement agreeing to visitations and but then when child support is reduced you do not want to let your ex have them? This is only the way the post sounds…


#2

Stepmother:

I understand that you obviously took my post the wrong way. My ex and I signed the separation agreement which outlined custody when we first separated. Since that separation date he has never saw our son like the agreement outlined. Since going to court to enforce the support that he wasn’t paying he suddenly is making threats to me about coming and getting our son exactly like the agreement says. Before the court enforced child support he was ready to do away with the agreement. I don’t think the visitation schedule in our agreement is good for our child since he is only 20 months old and his father has not made any effort to be consistent in his life. Conversations between me and my ex since separating have made me a little worried for the safety of my child if he was to go with him for a weekend. I fear that he would not bring him back to me as the separation agreement states. Since my ex and I separated I have found out many things about him that don’t make him the greatest person. I have tried on many occassions to talk to him about his living arrangements but anything I ask him about his life that would have an impact on our son he refuses to answer. He says that he will not allow me to have control over him which in turn basically means he doesn’t think I need to know things he does that relates to our child. I have tried working with him on numerous occassions but he will not have it. I know we only have a separation agreement and I am currently trying to get a consultation with a lawyer to find out how I need to go about modifying the custody that is in the agreement. Until I do that I feel that I that I cannot let my ex take our child with him for the weekend for safety reasons. I hope all of this helps you to better understand my situation. I did not stop visitation once child support was reduced. The visitations were never happening before. Now suddenly he wants to take a 20 month old child away with him for the weekend when our son has not even seen him in over a month and has only stayed one weekend with him (2 months ago) since our separation date.


#3

I understand that your ex may not be the person you thought he was and it’s actually normal to find out things after separating about your ex and the kind of person they are or have become. Regardless, for the most part, you have no say in what happens during a visit. You do not have any control over your ex, where he lives, who he lives with, where he works or what he does and you can not keep him from having his visitations unless there is a valid claim of abuse or neglect. Do you think that his father would hurt him or is it that he has never spent time alone with him and possibly wouldn’t know how to care for him? It’s not an easy situation, if you have been the sole care giver, to all of a sudden have to be without your child with no idea of what they are doing and if they are alright. If that is your reason to change custody then it’s not doing your son any favors. Children need both parents and his father needs to learn to care for him. The only way to learn that is to do it. The only way to do that is for you to let him and not to interfere unless he requests help or advice.
If it’s a fear of him not bringing your son back, I think that most parents go through that, but with a few exceptions I haven’t heard of an outright kidnapping by the other parent with no contact. There’s not much that I could say that would make you feel less afraid of this happening. Even if you took away all of his rights to see his son that does not mean that he couldn’t take him. If he has not physically hurt your son, you have no grounds to refuse him visitations. You can not condem someone for something they might do. If he fights you on modifying custody then the courts are going to want to know why you are requesting to change it and sorry to say, a fear that something will happen is not going to be enough of a reason to take visitations away from a father.

Were this my ex I would assume that he wasn’t taking his visitations prior to court because he wasn’t paying. Now that he’s being forced
to pay, he’s taking his visits.
Since he is the child’s father, you may end up having to trust that though he may not do things the way you would or even inform you of events in his life or during his visits, he will bring your son back after each visit.
Maybe an attorney will answer this post also because I may still not understand. This is all just my opinion, but I believe that you should not waste your energy on a situation that you can not control.
Let your ex have his visitations, and continue to try. Now that being said, if there is a history of abuse then all bets are off and you should fight tooth and nail to keep your son from his father. Hopefully, someone else has some suggestions…


#4

BTW…before you assume that I’m only on the father’s side, you should know that I would have told any father the same thing. The only one’s that truly win in court are the attorney’s. The children’s best interests aren’t always met and the parents are not always treated fairly in their rights to raise their children, but the lawyer’s always get paid. The attorney does not have to live with the affects that your divorce has on your child. This is one reason that you should consult an attorney in order to protect yourself, but you should make your own judgements about what is worth spending the money in court over. Anything that can be agreed on or decided outside of a court room should, in my opinion.
Children have enough trouble during a divorce without having to choose between two parents that they love. Regardless of whether that parent deserves their love or not…just something to think about.


#5

Pooh -
If you are that concerned about the father spending time with his son, and you feel his sudden interest is only in retaliation for you making him be financially responsible, then why not just drop the child support??
I chose not to pursue my ex for any type of support for our two children, because I knew that he would feel entitled to visitation if he was paying money for their well-being. He has never paid a dime, and he has never spent a minute with them since I left. I prefer it that way. It keeps things simpler. My ex is a very very mentally unhealthy person, and I didn’t want to expose my children to his lifestyle and emotional issues.
There are many many ex-spouses who wouldn’t give a rat’s butt about seeing their children, except for the fact that they are paying money out every month to support those children.
You survived for four months without his support… cut the ties and move on with your life. I would bet a healthy sum of money on him disappearing the DAY his financial obligation ended. Sometimes what’s best for our children isn’t an extra couple hundred in the bank, it’s raising them AWAY from the unhealthy environment we worked so hard to leave in the first place.
I could have had a much easier time if I had pursued my ex for support. I could have afforded more than a $300/mo one-bedroom apartment, and I could have had a bed to sleep on instead of a fold-out couch… but two and a half years later, with my life stable and the ex nothing more than a memory, I am SO glad I didn’t ask for help from him. And so are my children. My five year old is still in therapy to deal with the issues her father left her with, and it would be nice to have him help pay for the damage he caused… but if he were paying, he would be playing, and that would only prolong the drama and damage to the children’s lives and to mine.


#6

Almighty:

You brought up a very good point. One I certainly have not thought of. Thanks


#7

Dear aidypooh:

Greetings. You must follow the separation agreement or file a claim for child custody. Good luck.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#8

SHOOT! My ex hit me with a motion to modify today! She claims I have spent no holodays with my son, I don;t take care of him, I don;t pay his bills for daycare, etc. Geez if I don;t do all of this where is all my $$.
what I can’t understand is that we have a PERMANENT custody order. guess Permanent doesn’t mean permanent. she say in la large part the motion is because i moved to Wake county instead of staying in MISERABLE durham with her and that is a major change in circumstances for custody. So i guess the court gets to dictate where I live by deciding how custody will be arranged, decided, or ordered. she is such a fruit loop. Even her attorney stood up in court today and basically said she was crying wolf. I hope she does it enough to really piss off the court so they will get tired of her WASTING the courts time (But I hope she keeps going on so that she has to spend that money for her lawyer to do all of this crap!).


#9

My STBX has been ina relationship with a guy for the past year and 10 months of that was while we were still in the same house living a “normal” life. We have now been separated for 2 months and she has introduced my youngest son to this individual. She is proud of the situation but there is not a separation agreement filed. What legal recourse for custody does this provide me. She has talked to an attorny and he told her this was the 2000’s and people make mistakes. I really can’t belive a judge would feel this way. I am in no way interested in an AofA case but I do not want my son subjected to this behavior and making him think this is OK to act in this fashion. Can I make her pay attorney fees for this also? Any help with this will be appreciated.

ps Jane, I would also like to speak with your firm concerning my case because a lot of the attorney’s in my area are not interested in my case. I am in the Pinehurst area of NC.


#10

Well-the attorney was right in saying that people make mistakes. We ALL make mistakes. In your case though, your wife’s behaviour won’t deny her access or visitation with her son. You don’t have an agreement together, so you’ll either have to have one made up that she will agree to, or take it to court and have it ordered.

You can still talk with your children about what you think is appropriate behaviour, but you can’t dictate hers. They will have to make their own mind up on that. Without making disparaging remarks about your wife, just explain your beliefs. Being ugly toward her will only make it harder for your children–eventhough I understand you’re hurt and mad at how she has behaved. Her ‘pride’ MAY be happiness and she may want to share that happiness with her children. Or she may be trying to rub your face in the situation-I dont know. The best YOU can do is live your life as you want your kids to live theirs (lead by example) and be loving to them.


#11

If you have an Agreement and you believe that the terms are no longer in the best interests of your son you must file an action for child custody. The court will make a determination based on the best interests of the child.

If you already have a court order and wish to modify it because you believe the terms of the order are no longer in the best interests of your son you must file a motion to modify custody. To modify custody you must show that there has been a substantial change in circumstances and that change affects the well being of your child.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#12

My husband and I have been separated since 9-1-06. We have a separation agreement that was signed between the two of us and notarized that outlines everything including child support and child custody of our 20 month son. Since the separation agreement was signed it has not been followed as far as custody and support. I recently went through social services about support and we had our courtdate last week where the amount in the agreement was reduced to a lower amount. The agreement was filed through the court for means of enforcing the support amount. My husband has not tried to see our son in at least a 2 month period. I went without support for 4 months. I have been raising our son on my own. Ever since the court set the child support amount my ex has been asking to see our son exactly how the separation agreement states. I have concerns for the safety of my child because of conversations with my ex and things that have been stated to me by him. My main concern is we don’t have a court order when it comes to custody and I’m worried that he may take our son and not bring him back. He says he wants to see him this weekend and stated that he will be parked in my driveway at the time in the agreement. I’m wondering if I have reason enough to not let out son go with my ex. What steps should I take to get custody of our child changed and court ordered. Thanks for any help from anyone.