Can FHF provide me with legal advice?
We cannot provide legal advice. Fathers Helping Fathers is here to ensure that you know that you are important in your child’s life and that unless a judge tells you you cannot see your child you have a right to be in your child’s life and cannot be shut out of it.
Can you help me find an attorney?
Absolutely, we have an ever-growing list of attorneys that we have a relationship with. Every situation is different and you must consider every factor when choosing an attorney that best fits your particular situation.
What do I do if my child’s mother will not let me see my son/daughter?
It can be frustrating and gut-wrenching, but the best thing to do is stay calm. If you have a court order stating that you have visitation with your son/daughter for that time, simply call the police. The police will come and fill out a police report to ensure that you have a record of the “Visitation Interference.” Child custody and visitation are civil matters, and as such, the police will not remove your child from their mother, even with court ordered visitation time, unless there is a threat of imminent danger to the child. Then notify your attorney that you did not get visitation and check the statute in your state. Some states make “Visitation Interference” a crime punishable by fine and/or jail time.
My child’s mother and I have agreed on time and specifics of visitation, is that enough?
Yes and no. An agreement between the two of you is not necessarily enforceable. The best thing to do, even if you agree, is to have the court enter an order saying exactly what is in your agreement. It can be for the benefit of both of you – it can never turn into a he-said she-said situation. Some courts will honor the agreement between you, even if it is not on paper, if you have maintained that schedule consistently for some time. However, some courts will not, and it’s better to be safe than sorry. Have the court enter the agreement.
What visitation rights does a non-custodial parent have?
A non-custodial parent has a right to reasonable visitation with the children. The children’s ages are considered in determining reasonableness, as well as the visitation circumstances. Visitation may be restricted only upon a showing that it would endanger seriously the child’s physical, mental, moral or emotional health. Even in cases of serious abuse, visitation is likely to be permitted, although supervision or other restrictions may be ordered. Visitation may be modified from time to time by the court, as the child’s needs require. Visitation abuse occurs when a party has willfully and without justification denied another party court-ordered visitation, or exercised his or her visitation rights in a manner that is harmful to the child or child’s custodian. Court-ordered visitation may be enforced on an expedited basis in cases of visitation abuse.
What effect does a parent’s mental illness have on visitation rights?
Mental illness or substance abuse is not, per se, a sufficient basis for restricting a parent’s visitation rights. The mental illness must be considered along with all the other factors, and visitation can be restricted – such as by requiring supervision – only upon a finding after hearing that visitation would endanger seriously the child’s physical, mental, moral or emotional health. A parent may be prohibited from contact with the child while under the influence of mind altering substances.
Under what circumstances will visitation be prohibited or restricted?
In matters of visitation, the primary concern of the court is the welfare of the child. Courts take the position that the best interest of the child is normally fostered by having a healthy and close relationship with both parents. As a result, Illinois law provides that a parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health. Only very extreme circumstances require and allow the trial court to permanently deprive a parent of visitation. In order to restrict visitation rights, the custodial parent must prove that the visitation endangers the welfare of the child.
Generally, a parent’s behavior which is not shown to have an adverse effect of the child will not be considered in granting visitation. Where, however, the court finds that the child’s well-being may be endangered because of the parent’s behavior, visitation may be prohibited or restricted. For example, a parent may be denied the right to overnight visitation in the presence of a paramour if the court is concerned that the child’s moral development could be influenced by the parent’s choice of living arrangements In such a case, overnight visitation might be allowed at the home of the child’s grandparent. Courts have preserved the visitation rights of a mother confined in a penitentiary for murdering her husband, and of a mother who had been arrested for disorderly conduct in the presence of her children and had been physically restrained for her own protection while hospitalized for psychiatric treatment.
What constitutes a visitation restriction?
“Restrictions” have been found to include a prohibition of overnight visitation; a requirement that visitation occur in the custodial parent’s home, or outside the home of the noncustodial parent; or the requirement that visitation be supervised.
Can relatives get visitation rights?
Reasonable visitation privileges may be granted to a grandparent, great-grandparent, or sibling of any minor child if (a) the child’s parents are not currently living together on a permanent or an indefinite basis, or one of the parents has been absent from the marital home for more than one month with whereabouts unknown, or one of the parents is deceased; and (b) if the court determines that it is in the best interests and welfare of the child. When one parent is deceased, the surviving parent may not interfere with the visitation rights of the grandparents. Other relatives, such as aunts, uncles and cousins, do not have visitations rights, even where the child has lived with them or been very close to them.
If the custodial parent denies the other parent visitation, can custody be changed?
Denial of visitation alone does not support a custody change, but visitation interference, coupled with other acts such as a decision to change the child’s surname, which are found to be outward manifestations of a comprehensive scheme by the mother to deny the child any type of relationship whatsoever with his father, may constitute a sufficient change of circumstances affecting the child’s well being.
I want to change my custody agreement. What do I have to do?
One of the minimum requirements needed to effect a change in custody is a ‘substantial change in circumstances’ . You must be able to document the change or changes and show that they are detrimental to the children.
Can my child talk to the judge and tell him/her where he/she wants to live?
Most judges will not talk with minor children about their parent’s divorce or custody case.
I worry that my ex-spouse is going to take the children and hide. What can I do?
If you think the other parent may try to conceal or flee with the children, there are steps you can take. A Temporary Restraining Order (TRO) that prevents the child from leaving the State should be filed immediately.
Do I have the right to see my child’s school records?
Unless specifically prohibited in the parenting plan or by a subsequent order from the court, you have the right to complete access to your child’s school records as guaranteed under FERPA, the Family Educational Rights and Privacy Act.
How can I get my child’s report cards and other school records?
Unless your parenting plan specifically bars you from accessing to your child’s school records, you have the right to obtain them. Use the School Records Request Letter to get your child’s report cards and other information from the school.
How can I get my child’s medical records?
Unless your parenting plan specifically bars you from accessing to your child’s medical records, you have the right to obtain them. Use the Medical Records Request letter to get your child’s medical records and other information from his or her doctor(s).
What is the “Right of First Refusal?”Having the “Right of First Refusal” basically means that before either parent can use the services of a baby-sitter or other third-party caregiver, the other parent must be given the opportunity to care for the child during that time.
Is unemployment a factor in awarding custody? Unemployment can be a factor, but it might not work the way you’d expect it to. In some instances, not having a job equates to having more available time for the children, and if the judge knows one parent is working and able to financially support the children, the one without the job is free to be the “caretaker” or custodial parent. This is statistically more likely to be true if the unemployed parent is the mother. This may not be fair, but it is a fact that should be taken into account. Some attorneys will go so far as to advise a parent to quit work in order to bring this very kind of situation into effect. Again, this tactic is much more likely to be suggested to a mother than a father.
My ex is (or was) using drugs. Will that help me get custody?It might. If this can be brought to the attention of the judge (or better yet, a custody evaluator), it may be a decisive factor. Marijuana use isn’t considered to be as serious an offense as it used to be, but the use of cocaine, heroin, and amphetamines, as well as “designer drugs” like Ecstasy, is taken very seriously by most judges and evaluators.
My ex was having an affair. Will that help me get custody?
Probably not. Extramarital affairs are no longer a major factor in custody issues since the advent of “No-Fault” divorce laws. Generally, the only time an affair will make any difference in a custody determination is if it exposed the children to some sort of danger or was detrimental to their well-being in some way.
My ex has extreme religious views. Will that help me get custody?
Family Court judges hate to mess with religious issues; it’s tricky territory at best. Unless the judge can find an extremely compelling reason to address it, they prefer to have the parents work it out amongst themselves. When religious issues are brought before the court, judges will typically defer to the custodial parent’s wishes.
My ex has psychiatric problems. Will that help me get custody?
Psychiatric problems can be influential in a custody determination. If your ex has a documented history of mental illness or a verifiable personality disorder, the judge or custody evaluator should consider this to be a negative factor in awarding custody. If your ex has emotional or psychiatric problems, you will want to document this fully and present it to your attorney and the evaluator, if one is used.
My ex is trying to alienate our child from me. Will that help me get custody?
It might. More and more judges and evaluators are becoming familiar with parental alienation and are willing to consider it as a serious issue; some custody evaluations are decided on this factor alone. Although evaluators typically refer to it as the “willingness to support the child’s relationship with the other parent”, it works out to be more or less the same thing. If you can show credible evidence of alienation, it should be considered as an important factor in deciding custody.
My ex is a heavy drinker. Will that help me get custody?
Possibly, but it depends what you mean by “heavy drinker”. If it can be shown that the other parent’s drinking prevents them from properly caring for the child, puts the child in danger, or keeps them from parenting effectively, then it may be a factor. Ordinary social drinking will almost never be considered a serious factor in determining custody. If your ex has a history of alcohol abuse, is (or has been) a member of Alcoholics Anonymous, or has been through a drug or alcohol rehabilitation program, this should be brought to the attention of your attorney and the evaluator, if one is used.
My ex is associating with drug users / violent people / criminals. Will that help me get custody?
During a custody evaluation it might, but if custody has been established for some period of time, don’t expect the courts to act unless the circumstances are extreme (and possibly not even then). Your best bet is to document everything as fully as you can. If you believe the situation poses a genuine threat to your child, contact your attorney about filing for custody.
Is it harder to initially determine custody or change it later?
It is usually much easier to determine initial custody than to change or reverse it later. The court looks at different things when they initially determining custody than they do when modifying custody. When initially determining custody the court looks at a variety of factors that are similar in most States. These are often called the “12 Factors” or some similar name. Chances are your State uses some variation of this in their State Statutes. When hearing a request to modify custody, however, the court adheres to a stricter standard. Not only must there have been a change in circumstances, but there must be a “substantial change in circumstances”, enough to warrant uprooting the child from the environment he or she is currently in. This is a much harder thing to do in court than making an initial custody determination in most cases.
My ex is trying to take our child out of the country. How can I prevent this?
Call the Passport Services Office of Policy and Advisory Services at 1-202-955-0232 for information on preventing your ex from leaving the country with the child. This is what they will tell you: Send a written request that the child(ren) be placed on a name check system. Send child(ren)’s names, dates and places of birth, plus Social Security Numbers (if you have them), and any other pertinent information (like a physical description), along with your name, address, and a phone number where you can be reached, to Passport Services. Make sure you sign the request. You can FAX the request letter to 1-202-955-0230.
My ex is trying to get her new husband to adopt my children. I don’t want to lose my kids. Can she do this against my will?
Generally, no, but it depends in part on whether paternity has been established. Do you currently have a court order? Do you have any papers of any sort acknowledging that you’re the paternal father? If not, you must establish paternity as soon as possible. Have your attorney petition the court for a paternity test. At the same time, inform the court that you do not wish to have your paternal rights terminated.
If you do have a court order acknowledging that you’re the paternal father, there is little she can legally do to allow her new husband to adopt your children. You and your attorney should assert in court that you do not wish to have your paternal rights terminated. Ask for attorney’s fees, since she is the moving party.
My ex-girlfriend and I had a child together. She left the child with me but will not sign over custody. What are my chances of getting custody of our child?
Because of your unmarried status, you will almost certainly need to establish paternity first if you haven’t already done so. Once paternity has been established, you would then file to obtain temporary custody as a first step. The longer the child has been in your care, the better the chances that you would be awarded temporary custody. This is an important first step, because temporary custody usually turns into permanent custody, and the most reliable indicator of whether or not temporary custody becomes permanent is how long the child has been under the temporary custody order. Again, the longer the child is in your care, the better.
If you intend to file for custody, you should retain an attorney as soon as possible and discuss this matter with him/her.
Because delay works in your favor, your attorney may want move more slowly and wait to file the motions until sufficient time has elapsed. Once the case is underway, your attorney may further elongate the case by extending the court date. This way the child will be with you in an ‘established custodial environment’ for as long as possible before the judge has to make any decision. After a certain amount of time (6 months to a year) it almost won’t matter, the judge won’t want to change the status quo no matter what.
My girlfriend and I had a child. Problems arose, and she left with our infant child and went to another state. Can she legally do this?
Yes, she probably can. Unless there was a restraining order or other court decree that prevents her and/or the child from leaving the State, she would be free to do so, just as any legal parent of a child would be.
My spouse is accusing me of being gay. Can someone lose custody of their child for being gay or lesbian even though they’re an excellent parent?
In theory, no. In reality, possibly. Sexual orientation is not supposed to be considered as a factor in determining custody. Judges are expected to put aside personal feelings when they conduct a trial, but they have biases just like everyone else. If a judge has issues with the sexual orientation of a prospective custodial parent they may, in fact, influence his decision. It isn’t supposed to work that way, but it can happen.
My ex does not call, visit, or write our child. Is there any legal action I can take to make my ex use his/her visitation time?
Unfortunately, no, there is no way to force visitation (or a relationship) with an unwilling parent. The courts usually won’t bother to even address this issue because there isn’t anything they can do either. You may facilitate the relationship to the best of your ability, but there isn’t any way to force it if the other parent is uncooperative.
My child’s mother voluntarily gave up custody to me some time ago. Now she’s back and saying that she’s going to file for custody. What are her chances?
Anything is possible, but generally her chances to obtain custody now would be slim. Once custody is established it is usually very difficult to change, and the fact that she voluntarily relinquished custody previously won’t aid her case.
When a child is born, is the mother automatically the custodial parent?
It depends on the specifics of the situation, but generally the mother is considered to be the de facto custodian of the child if she isn’t married and no father is listed on the birth certificate.
I’ve been incarcerated before. Will this make it harder for me to get full custody of my child?
In a word, ‘yes’. Previous incarceration can be a serious obstacle to custody, as most judges don’t look favorably on a prior history that includes jail or prison time. Your best bet might be to retain an attorney and seek some form of joint custody, establish a pattern of responsibly exercising your parenting time, and then consult with an attorney again to find out if seeking full custody is a realistic option.
My ex lost custody of our kids 9 months ago due to a domestic violence incident in her home. What are the chances of her getting custody back?
The longer you have the child in your custody, the worse her chances become. Because delay works in your favor, your attorney may want move as slowly as possible so the child will be with you in an ‘established custodial environment’ for as long as possible before the judge has to make any decision. After a certain amount of time (6 months to a year) it almost won’t matter, the judge will be reluctant to change the status quo without a very good reason.
You will want to be able to show that the child is doing well in your care, by documenting the child’s progress, grades, health, etc.
You may also want to verify that there have been no further incidents of domestic violence in her home, which would certainly count against her re-obtaining custody.
My ex and I share joint legal custody. Does she have the right to dictate where and who the child is with during my parenting time?
No, she doesn’t. She cannot control, regulate, or restrict who you see or what you do during your parenting time. Generally, the only exception to this would be if there are provisions in your Parenting Plan or divorce decree that specify some sort of limitation(s) or condition(s). If there are none, then she has no authority to manage or direct what you do or who you see during your parenting time.
My fiancee’s ex-husband has not had any contact for over 2 years with her or his daughter. What do I need to do to legally adopt her?
The adoption process is the act of terminating one parent’s rights and obligations and granting those rights and obligations to another. In order to terminate rights, grounds must be shown unless you have the written consent of the person who will loose the rights and obligations. Often a parent will give that consent if the other parent will agree not to collect past due support. In the absence of consent, abandonment for a specified period can be grounds for terminating rights in most jurisdictions, but the abandonment generally means no support payments at all for the period, so if the parent makes just one payment after the adoption process is started, then there may not be the required abandonment.
Don’t see an answer to your question? Please contact us with your specific issue.