Article by Daniel A. Levy, Esq.
Every week, potential clients contact me and explain that they are no longer dating their child’s mother, and the mother is no longer letting him see the child (I do get this same question from mothers when the father has custody of the child, but this is rare). Very often, these parents are upset and unsure what they can do in order to see their child. Below, we will discuss what you can do if you are not permitted to see your child and how you can prevent this situation in the future.
When clients come to me with these questions, they fit into one of two categories. The first category are cases where there is no court order for custody. The second category are cases where there is a court order, but the custodial parent is violating the order for whatever reason. In either situation, it is best to contact an attorney right away.
In cases where there is no court order for custody, the situation is basically in a “grey area”, legally speaking. As there is no court order in place, neither parent has legal custody. But at the same time, the child is, practically speaking, primarily in the care of one parent or the other. In other words, the mother may not have a court order saying that she has custody, but in reality the child is in her care and under her control. And since there is no court order, the non-custodial parent cannot complain to the police or a judge that the mother is doing something wrong. Also, in such a case, there is no law stopping the father from just picking the child up from school and taking them to his house, but that is usually not a great idea, for several reasons. In any event, the only real option that the aggrieved father has in that situation is to immediately file a complaint with the court to establish custody and order a parenting plan. Unfortunately, this will take some time, especially since there is a significant backlog of cases in some counties in New Jersey.
In cases where there is already a court order establishing custody and a parenting plan, the aggrieved parent has some more options. Notably, it is a crime for someone to deliberately violate a court order about custody. This can be reported to authorities. The non-custodial parent should also file an application with the Family Court. Depending on the circumstances, a judge may order that the child be turned over on an emergent basis. But even if an emergent application is not appropriate, the court has a wide array of enforcement options to ensure that the court’s orders are followed. A judge could fine a parent, order that custody be transferred to the other parent, order that the non-custodial parent would receive more parenting time, or even throw a parent in jail for violating court orders.
In either case, these are sometimes complicated situations that really do need the attention of someone with legal expertise. These cases could be difficult to navigate and we always recommend that anyone involved with a custody dispute contact an attorney to assist them.
Notably, it is never too early to contact an attorney. Frankly, the best way to navigate these custody disputes is to avoid them in the first place. Even if you are getting along great with the other parent, you should still contact an attorney and file papers with the court. If you have an arrangement with the other parent, which is working, an attorney can help you get a court order that memorializes that arrangement. That way, you are not making the first court application when something has already gone wrong. And that is something that is very important to understand – you may have a great system right now, but a month or a year from now the other parent may have a change of heart and that system may no longer function. With proactive efforts, using an attorney, you can avoid problems before they happen.