Child Custody in a Legal Separation

 Posted on December 22, 2017 in Child Custody

When parents split up, it is not always done with a complete plan in place as to how the couple will share time with the children or parental responsibility. This can sometimes lead to disagreements as to which parent will keep the children and how often the other parent will see them. These disagreements are best settled with a court order, and parents can file for an emergency order while the divorce is pending.

Because both parents have parental rights when it comes to their children, unless a court has previously terminated those rights, each parent has a right to keep the children when the parents are separated. For example, the parents have an informal agreement that the children will stay in the marital home with the mother and visit the father. If the father takes the children for a visit and then decides not to return the children to their mother, the mother would have little recourse without going to court.

Even if the mother calls the police, the police are unlikely to take any action unless the children are in danger. Because both parents have legal rights to have physical custody of the children, the father is not technically breaking any law by keeping the children. The father is only breaking the terms of the informal agreement with the mother.

In order to avoid this situation, when the couple separates the parent who wants to stay with the children should seek temporary parental responsibility with reasonable time sharing for the other parent. With the temporary court order in place, a parent who refuses to return the children as discussed in the example above can be required to return the children through court action or by calling the police.

Fathers have just as much right to keep the children after a split as mothers do. Even if the mother suspects that the children are not biologically related to the father if the parents were married when the children were born the law assumes the father to be the legal father with all the rights that come with that designation. Therefore, no spouse should assume that they have a greater right to keep the children and rely on that as a reason not to file for a temporary order.

Once a court order is in place, parents should make every effort to abide by the terms of the court order. A parent cannot deny access to the children because the other parent has refused to pay child support or is late in making payments.

Contact an Experienced Attorney

If you are separated from your spouse and need to take steps to keep your children with you while the divorce is pending, contact the compassionate and knowledgeable DuPage County child custody and visitation attorneys at Kathryn L. Harry & Associates, P.C.  for a consultation. We are prepared to help you today.