What are my visitation rights when there is no court order?

Divorce Attorney Angela FoyQuestion:

My wife took our child out of school and moved to another state saying I won’t be able to see my daughter until I file for divorce.

Since there are currently no court orders, can I take my daughter back and move her back home?

And what are my visitation rights when there is no court order in place?

Answer:

You should file an action quickly to address the situation and consult with a domestic litigation attorney in your area to address all of your options. I can give you some general guidelines about the law and what may be involved. I do not practice in Missouri where you live so I can only speak in generalities based on my experience.

As you note, right now there are no orders governing your situation. So, theoretically, you could take your daughter and repeat the same behavior that your wife did.

However, what you can do and what you should do are not the same thing. Since you will be arguing in court that your wife’s behavior was wrong, you should not repeat it; nor is that type of behavior best for your daughter. The assumption at the beginning of a case is usually that you each have equal say in where she attends school. By filing an action and requesting a hearing on the matter, you may be able to request or require her return.

You are also entitled to placement time with your daughter, but again, no schedule is yet in place. It may be best for you to request time now and take what you can both agree to even though it may not be all of the time that you are looking for.

I would encourage you to act quickly. Right now, you likely can still file in Missouri and have the case, including custody and placement, decided there. Missouri still has jurisdiction.

However, the longer you wait, the more her move will have precedence. Your wife can make the argument that she is adjusted there, and has friends, and that she has been the parent providing all of the care. Your daughter has already changed schools once this year; the court may be reluctant to force another change on her unless it is right back to her old school.

Also, the longer you wait, you run the risk of Missouri losing jurisdiction over custody and placement, with the state your wife and child are in then having jurisdiction. There often is “home field advantage” and a Missouri court is much more likely to order a return to Missouri than another state’s court.

All of your options depend on the facts of your case, and the laws in your jurisdiction. You should contact a domestic litigation attorney licensed in your area.

Cordell & Cordell has men’s divorce lawyers located nationwide, and they would be happy to discuss your case with you.

 

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

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