Wife keeping children from me

North Carolina Divorce Law Divorce and Separation Answers
1

I’m a father of 4 who recently moved out of the house (9/1/11). Prior to moving my wife and I talked about custody, specifically joint custody, but she wouldn’t commit to anything. I got served on 9/5/11 with papers saying she is going for full custody. The children had overnights with me on 9/2-9/4. Now she is telling me that the kids will be with her this weekend, when they’ve had overnights with her all week. She is trying to railroad me out of joint custody and telling me that because I left, I have to talk to her lawyer and can’t take them with me for overnights. Help!

Do I have the ability to take the kids with me for overnights anyway, regardless of what she says. We still split daily transportation to school, cooking dinner, doing homework. I’m not any less involved than I was before, if anything, I’m now more involved. The kids want to sleep over and I don’t want to say its because mommy won’t let them and she’s trying to take you away from me, but that is in effect what she’s doing. I don’t want to lose this weekend with my kids. I would prefer to alternate weeks for weekday overnights and then weekends, but she is cutting me off entirely from the overnights as part of her play for total custody.

2

** I am not a lawyer… I am speaking from my own research and experience **

As I understand it, absent a custody order or agreement, you both currently still have equal access to the children. If I were in your situation, I would pick them up on Friday (or whatever has been your arrangement) and just keep them for the weekend as you have been doing; then send them to school on Monday as scheduled. As long as you don’t flee the state, and you still allow them time with her, I don’t believe there is a whole lot she can do until a court order is issued, or agreement put in place, on the matter.

It sounds like she is trying to make a case on paper for the upcoming custody case (for example, ‘I had the children all the time, and he showed no interest in trying to change the situation’). I would document every day you have asked for overnights and been refused. Document the days you picked them up and kept them with you- noting when it was because she refused you reasonable overnights, etc. In short, document everything. I’d even record phone calls with her (as long as you are both in NC or another one-party notification state you don’t even have to tell her you are recording the conversation for it’s contents to be admissible in court). If you let her railroad you here, and take no action, she could potentially go to court and say ‘hey, he could have picked them up at school anytime- he just chose not to’ or something like that. You should be able to show you are fighting for the time with your kids, and that you are taking your own (legal) initiatives to exercise your parental rights.

Best of luck to you.

3

Absent a court order or valid agreement, you have equal rights to your children. Technically, you could pick them up and even keep them with you 100% of the time unless and until a court steps in and says you can’t do that anymore. I wouldn’t recommend this though, because it would hurt you in the custody trial if you are withholding the children without good reason. I suggest you go along with her at this point, so as not to make yourself look bad in the event of a trial, and in the meantime you definitely need to meet with an attorney to create a plan of action in your case. Please also do keep records of every time you request to see or talk to your children and are denied. This will help you later on if the court believes she is doing this without valid justification.

4

The funny thing us that I’m not even trying for 100% time like she is. I had suggested we alternate weekends and alternate school nights. One Mon-Fri at my house and the next Mon-Fri at her house, especially since we are equally involved in our children’s lives. She won’t agree to anything but is going for 100% custody. I don’t think she has any grounds for this, and I’m almost afraid to challenge her because she is the woman in the marital home. At this point, until the court date, I would be happy with 3 overnights a week to start to establish the joint custody requirements for overnights.

Can I take the kids with me just 3 nights a week without her being able to stop me with a court order or other repercussions that would affect custody???

5

I have always heard that visitation, etc. that is exercised in the interim can, if it goes on long enough, be seen as a “standard” once the case comes up. Example, if you only see your children 2-3 days a week in the time between now and your case, that this could be seen as the best thing for the children; since it’s gone on for so long and it is presumably what they are used to. Of course, if it’s only 2-3 days a week because she’s refusing you from having them any more than that, then be prepared to produce proof via written documentation. Then again, if you only want them 2-3 days a week and you’re fine with that going forward, then there’s no problem.

You have to do what you think is best, but there is absolutely no way I would not see my kids for weeks or months at a time just because my ex wants them 100% of the time. You don’t want to go up to their school and start a scene of course if she’s there when you get there to pick them up; or start a scene in front of your children anywhere for that matter. But, and this is just me, if I were in a situation where my ex was refusing to let me keep my children for any overnights at all, and I had the chance to pick them up from school and take them home a few nights a week or over a weekend to spend some time together, I would certainly do that. If she then starts doing stuff in the future to prevent you from taking them for visitation (like picking them up from school early, not taking them to school, contacting the school to try and prevent you from picking them up, etc.), then that would certainly not look good for her going forward once your case comes before a judge. Document anything like this when it happens (while the dates, times, and circumstances are stil fresh in your mind).

Of course, if she has something coming up on a given weekend from time to time that she wants the children to attend with her, it’s also in your best interest to work with her; perhaps agree to swap weekends- you let her take them that weekend, and you get the children on her next weekend. You also want to show that you are flexible and willing to compromise when faced with inevitably changing schedules and activities, etc. Again, document, document, document!

Whatever you do, and this cannot be overstated, document absolutely everything. If she pulls them out of school early because she’s afraid you’ll pick them up, ask for a copy of the sign-out sheet from the office (most schools, if not all, require you to sign your kids out if it’s before the end of the school day) and note that you were supposed to pick them up from school that day and she came and signed them out early. If she refuses to let you have them for your weekend, write that down (date and time of conversation), record every conversation with your ex if possible. If you pick your children up from school to stay with you over the weekend because of her continued refusals to agree to the children having overnights with you, document that and WHY you did it (i.e. "she refused to let me have them after having them herself for xx days prior - in effect changing our previously agreed upon visitation schedule).

Again, best of luck to you. I’ve been down a bit of this road myself.

6

Since you feel she is being unreasonable regarding visitation, I certainly suggest again that you meet with an attorney. I would not recommend fighting her on this alone, and as Luvmygirls said, you need to document everything, especially attempts to see or talk to your children that are denied. She will need to prove in court that her having custody is in the best interests of the children, and that you are not deserving of 50/50 time. I would not recommend going against her wishes at this time as that will prove detrimental to you (and possibly the kids too) in the long-run if this proceeds to litigation. Go along with her in the meantime, but document everything and get an attorney as soon as possible.

7

NOT AN ATTORNEY

While you shouldn’t challenge your ex by making unilateral decisions to steak the kids from school or something drastic like that (cause it’ll look bad for you in court), keep trying to see your kids, keep asking for them, trying to arrange for outings (especially events), and document every refusal and the reasons she gives for those refusals. Make sure that when you do have your kids, you spend time with them around other people so that there are witnesses to the manner in which you and your kids interact. Go to parent/teacher conferences and in fact make sure that you are in direct contact with the teachers.

Do not give up on your kids because you are afraid of challenging the mother in the marital home. If you document well every denial, every blocked attempt, the judges will see through her scheme and it won’t go well for her…especially since you are being reasonable and only asking for 50/50 custody. From what I understand, judges prefer cooperative parenting rather than unilateral parenting and for the most part tend to be favorable to the parent that is most willing to work with and involve the other parent in the raising and care of the children…unless one parent’s influence can be seen as detrimental to the children’s care and upbringing.

As far as the kids go, I’d tell them outright that you want to spend time with them, would love them to spend the night, and if they ask why just tell them that you are trying to make it happen as soon as you can, then change the subject or distract them. Make sure that they hear that you love them very much. When they get older, they will put two and two together and you won’t have slagged off their mother in the process…and in the meantime, maybe the mom will feel less competative and be more cooperative.