Ask a Divorce Lawyer: What can I legally do to see my kids more if we never formalized a visitation agreement?

Question: I was never married to my children’s mother, but they both have my last name. Nothing ever went to court and we worked out an agreement with each other that I would get to see them every other weekend. 

But I desperately want to spend more time with my children now. 

How can I go about getting legal visitation so she can’t keep me from seeing them more? Does it matter that we have been working on a non-binding agreement?



Answer: I do not practice in Florida. Therefore, I have to advise you to contact an attorney licensed in Florida to discuss your situation.

In most jurisdictions, when a child is born outside of a marriage the mother automatically has sole custody and placement rights of the child.  Since your children have your last name, I am assuming you signed a Voluntary Acknowledgment of Paternity (VAP) at the hospital.  If the VAP was not rescinded within 60 days, the VAP is a binding determination of paternity.  However, the VAP does not establish a father’s parental rights; rather, you will have to initiate separate custody proceedings to pursue parental or visitation rights.  Although you and the mother have a written agreement, that agreement is not enforceable since it was not signed into a Court Order. 

You should contact an attorney immediately to initiate a paternity action to pursue a custody and placement order.  In addition to a custody and placement, the Court will also determine whether there should be a child support order.  This is not something that you should wait until she withholds placement as it could be a few weeks to a few months before you are before the Court.  In the meantime, without this paternity action, she may be well within her legal rights to withhold placement all together.   Therefore, you will also want your attorney to petition the court for temporary orders while the paternity action is pending.  Although I do not practice in Florida, Cordell & Cordell has attorneys licensed and located in Florida who would be happy to help.  


Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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