Dec 3, 2009

I frequently speak with parents who have separated from their spouse and are being denied visitation with their kids.  If there is a custody order or a separation agreement in place that provides custody and visitation rights to the parties, then enforcing those rights is fairly straightforward.

However, if the parents do not have a separation agreement or custody order in place, it can be very difficult to obtain time with your kids until you get into court.

The good news is that, legally, whether parents are together or separated, each has an equal right to physical custody of their children.  This equal right to physical custody exists unless and until a separation agreement or court determines otherwise. 

The bad news is that there are not many good ways to enforce this right until you can get into court.  Because each parent has an equal right to physical and legal custody, neither party has the final word. This creates problems for parents who are separated. 

One parent often lives with the kids after separation.  That parent then assumes control over the children and denies the other parents access to the kids.  So, while the locked out parent has a legal right to have the kids, he or she has difficulty exercising that right.

The only real legal option for addressing this situation is a temporary custody order.  A temporary custody order defines the parties’ rights regarding the children until a more permanent decision can be made. 

The problem is that it can take months to get in front of a judge to obtain a temporary custody order (at least in Wake County).  So, the parent being denied access has to wait 90 days or longer to exercise their rights to see their kids.  And, short of physically taking the children away from the other parent, there is nothing that can be done.  (Taking children from the other parent without permission raises other legal issues that can be problematic.  Further, it can be traumatic for the children.)

Adding to the problem is that denial of visitation rarely provides a legal basis to seek an emergency custody order.  These emergency orders usually require some direct threat of physical or extreme emotional harm to the children.  Not being able to see mommy or daddy for a few months generally does not constitute extreme emotional harm in the court’s eyes.

So, what are the options for a parent being denied visitation while they wait to get into court?  There are no really good options.  Taking the kids from the other parent, school or daycare typically causes more problems, legal and otherwise.  Requests for emergency orders are often refused by judges.  That leaves the locked out parent to simply grin and bear it until they can get into court.  And that is frequently the lesser of several evils. 

Unfortunately, the period after separation and before a separation agreement or custody order is a loophole in the custody laws in North Carolina.  The lack of workable laws governing this period of time often punishes parents that do not have physical custody of the kids.  Nonetheless, if you are in this situation, consulting an attorney about the specifics of your case may reveal options for enforcing your rights.


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