Can my wife deny visitation if we are still married, but separated?

Question:

My wife and I are separated but haven’t filed for divorce. She lives out of state with our child, but it is close to where my parents live.

She has been withholding the child and not allowing me or my parents to see her. What can I do so she is legally forced to allow my to see my child?

Can my parents legally replace me so that when it is my parenting time they can exercise it for me and take care of my child if I am unable to be there?

Answer:

As there is no court order in place to require your wife to allow you visitation with your child, at this point, it would be best for you to file for divorce and obtain a temporary order establishing custody and visitation while the divorce is pending.

A temporary order can generally be entered with the court early on by agreement or by the judge’s decision and will only establish custody and a visitation schedule in the interim until a final order is entered by the court.

If your wife does not comply with the temporary order, you may then seek relief from the court to have it enforced. In the mean time, you should continue to request visitation with your child, preferably in writing, to help you establish with the court that you have been attempting to see the child, but your wife has been uncooperative.

I am unsure exactly what you mean by having your parents replace you legally while you are absent. If you mean you would like to have your parents become guardians or custodians of the child, this would require your parents to seek court relief to obtain guardianship of the child, which is unlikely as long as there is a parent willing and able to care for the child.

If you mean that you would like for your parents to exercise your visitation in your place, then it would depend entirely on the laws of the state where the action takes place. It may be possible by agreement and/or court order for your parents to exercise your visitation when you are unable.

For more information on this topic or to obtain specific answers to your situation based on your facts and circumstances contact an attorney in your jurisdiction. Please be advised that my answering of this question does not constitute an attorney-client relationship.

Cordell & Cordell has men’s divorce lawyers located nationwide.

 

Katherine V. Lewis is an Associate Attorney in the Tulsa, Oklahoma office of Cordell & Cordell where she practices family law exclusively with a focus on men’s divorce. Ms. Lewis is licensed in the state of Oklahoma. Ms. Lewis received her Bachelor of Arts degree in Psychology and a minor in history from the University of Oklahoma. She then continued her education to receive her Juris Doctor from the University of Oklahoma College of Law.