Still-Married Dad - Mother Denies Dad Shared Custody

[friendofdad]

A friend and his wife had a child 2 and a half years ago.  During
childbirth the mother suffered severe seizures and almost died.
The father took care of the baby and even the ailing mother,
even when the doctors recommended she be permanently
institutionalized.  Miraculously, with the husband's doting care,
she amazed the doctors with significant recovery.  Although
she is still in a wheelchair, she is much improved.

Recently, the father and mother separated and the mother has
been living with her parents.  The father has been the primary
caretaker of his son, but has been bringing the child to be with
the mother and her parents on a regular basis as well.

To his surprise he was suddenly denied access to his own son
when he went to pick him up one day and was also served with
divorce papers.  He has been unable to see his son for 2 weeks.

Is this legal that a wife can deny her husband visitation or custody
when there has been no actual legal divorce degree or legal
separation?

The father has little money for high attorney fees and does not no
how to proceed to have shared custody of his son during divorce
proceedings.

Any advice?

Thanks!

[DadsCrushed]

My ex pulled this stunt. First, start documenting your efforts to see the children. Try emails, certified mail, and phone logs. Second, you do need to respond to her filing; there are deadlines. Third, you are the child's father, and she can not deny you contact barring a court order. One thing I would make sure I would include in your interrogatories would be questions challenging her mental and physical capabilities as a parent. Get her medical records. The fact that she needs others to care for her in order for her to care for the children will not help her case.

When you talk about being permanently institutionalized, is this the result of some mental instability? If so, I would also force her to have a full blown forensic evaluation. You can do these steps on your own, but if the issues are contentious, you may want an attorney.

You can show up at the house and ask for the children, again, barring no court order. I'm sure the ex will threaten to call the cops and the cops won't do anything if no court order. As a parent, legal guardian you can have equal access to those kids.

[4honor]

Do the divorce papers mention the child?

IF there is NOTHING about the child, he should go in for an ex parte motion before the judge and move for custody of the child based on mother's brain injury and unstable medical and psychological conditions.  Use the fact that she cannot care for herself to regain/retain custody.

[snowrose]

It's also important to mention that the father has been the primary caretaker since birth, feeding, clothing and caring for his son.  Might also want to mention that the son could be significantly harmed by not being allowed access to the parent he has relied on since birth.

[friendofdad]

DadsCrushed:

Okay, I will send advice for him to document all efforts to see his son.

The mother has been on medication for seizures and she has been unable to work or fully care for herself or her son.  Originally, she had been in a coma and then when she was out of the coma she was not communicating verbally.  The doctors were convinced she would never have normal function of body or mind.  That is why they advised institutionalization.  The husband nursed her back far beyond the doctors expectations.

It may be her parents that are part of the plan to deny him custody or visitation at this point.

4honor:

I will ask about what was in the divorce papers about custody.  Is an ex parte motion something he can file himself?  The clerks at the courts have been immensely unhelpful to him.  If there is something in the divorce papers about custody, what else can he do legally to be able to see his son?

snowrose:

Yes, I will let him know that he needs to emphasize he has been the primary caretaker, provider and main psychological parent.

Does anyone know if there is any kind of legal aid organization that can help fathers who don't have much money?


Thanks for all of your advice.  I will forward it to him.

[MomofTwo]

Regarding "If there is something in the divorce papers about custody, what else can he do legally to be able to see his son?"

If there are specific court orders and Mom is not following them, he needs to file for contempt and enforcement of the existing order.

Regarding clerks helping, they won't. They legally are not permitted to do so (at least the areas I have been.)  To file pro se, you have to know what motions you are filing and they will just supply them. Some other areas have more assitance.

One thing regarding going the path of saying she is physically and mentally incapable of taking care of the child due to her previous injury/illness,  he is going to have to be able to prove this allegation. His word will not do, and expect she will have her doctors testifying contrary to what he says. 

[ocean]

He can file an emergency temporary custody form with the courts and go before a judge. He can explain that he had been dropping off the child to mother for visits and the last visit, mother has not returned child. That mother is unable to care for child herself due to medical condition (If he has any documents to prove this from the past, bring them). Does the child go to daycare by him? Anything that shows that he has been the parent (dr visits? daycare? any proof).

He really needs to do this immediatley since it has already been two weeks. The judge wont grant this if he waits too much longer because they will say why didnt he come sooner. He can file himself at the clerks office. They will type it up but he has to tell them (or have a written copy ready to go ...bullets what has been happening so they can type it up). Then he will go before a judge (sometimes the same day).

If he does not go and get this OR the judge denies this, then he is looking at months and months of divorce court. Hopefully they can hash out parenting plans or else it will take literally a year or more to get this resolved ..the whole time the child is in her care.

[snowrose]

He really needs to do this immediatley since it has already been two weeks. The judge wont grant this if he waits too much longer because they will say why didnt he come sooner.

Agreed.  He can claim confusion and trying to find out what to do for only a short time, so he needs to move on this now.  Otherwise the mother will have set a precedent and that will be hard to break.