Ask a Divorce Lawyer: If we’re separated but there’s no divorce in progress, can my wife keep me from seeing my kids?

Question: My son is in the U.S. Army. While deployed overseas his wife of a little less than 2 years had an affair with another man and had his baby. My son and his wife already have a 21-month-old son. 

He is now back in the states and stationed in Colorado. His wife is staying in Texas with her mom. She won’t let him see his son since she’s scared he’s going to take her away from her, which he said he would do but he was just angry and really wouldn’t do anything like that. They say they don’t have the money to get a divorce. 

Since there is no divorce in progress, does she have the right to withhold the child from seeing his dad? What are his rights to see his son? And does a divorce really cost a lot of money? What do poor people do? Isn’t there a cheap, simple way to get a divorce?

 

Answer:

Without a court order governing each parent’s child custody and parenting time rights, each parent has equal rights to the child. At best, a parent who withholds her child, without justification, will look like the unreasonable spouse in court and, at worse, may commit a crime of parental kidnapping.

 A good reason to withhold a child, as you can guess, is if the other parent threatens to kidnap the child – as your son arguably did when he said he would take his son away. That is not conducive to a parent-child relationship and a working relationship with his soon-to-be-ex and will only inject animosity and anxiety in an inherently difficult divorce process. The kind of behavior makes for an expensive divorce, as both spouses (and their attorneys, if they have them) spend money investigating whether the claims are true, which could include private investigators, psychological evaluations, parenting time evaluations, depositions and multiple, unneeded hearings in court. Better to be reasonable at the outset to reach an amicable, efficient settlement. I strongly discourage your son from making those statements again; rather, he should notify his wife in writing of his desires to see his son, his assurances that he will return his son, and his goals to maintain a healthy, active father-son relationship – all the better will he look to a judge deciding which parent should have custody.

To make the divorce process less stressful and less expensive, your son might also try contacting the local bar associations to learn whether he qualifies for low- or no-cost services. This may be because of his income or his military status.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Rhode Island. Neither you nor your son should not rely on this answer as establishing an attorney-client relationship, and you and your son should contact an attorney in the area for additional information and legal representation. Cordell & Cordell P.C. does have offices in Texas and Colorado.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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2 comments on “Ask a Divorce Lawyer: If we’re separated but there’s no divorce in progress, can my wife keep me from seeing my kids?

    My wife and I are soon to get a divorce. I never signed their birth certificates and she uses that against me all the time and says when we get a divorce I will not have anything to do with my kids and she will make sure. Is there anyway I will be able to get some type of custody when we finally do split? All I want is my babies.

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