Luke and Karen have two young children. After discovering Luke was having an affair, Karen informed him that she would be filing for divorce and that he was to pack his bags and leave. Luke moved out, but specifically rented an apartment nearby so he could still be close to the kids. Once he was settled in, Luke called Karen and asked her if the children could spend the weekend with him. Karen told him in no uncertain terms that he was not worthy of seeing his children after what he did to her, and promptly hung up. Karen then refused to take any more of his calls or answer his texts.
Luke had no idea how to proceed or what his rights as a father were. He was aware that couples with children who divorce end up with a child custody order as part of their divorce decree. However, he and Karen were only separated, and it would be some time before their divorce even really began (Karen had yet to serve him with papers). What was he supposed to do in the meantime? He knew it was wrong to cheat on Karen, but there were a lot more problems to their marriage than just that. Luke loved his children and didn’t want their marital problems to hurt their family anymore than they had to. He had always had a close relationship with them. What was he supposed to do now? Could his spouse really stop him from seeing his own children?
When a couple separates and is headed for divorce, hurt feelings and emotions — ranging from rage to bitterness — are the norm. Because the wounds are so fresh, separation is often the most difficult part of the entire divorce process. During separation, upset spouses have been known to do everything from change the locks to run up large debts on jointly held credit cards. Unfortunately, when a couple has children, kids all too often end up being dragged into their parents’ problems.
Getting back to Luke, just what are the rights of a parent going through a separation? Unless Karen somehow has evidence that Luke is an unfit parent, he has the right to see his children. Legally speaking, in New Jersey it is considered in the best interest of the child to spend time and have contact with both parents whenever possible and appropriate.
When couples with children separate, there are two generally two ways to ensure that each parent is allowed time/contact with their child:
Mutually Agreed Upon Plan: In some situations, parents are able to discuss how to handle visitation and parenting time with their children in the time leading up to their divorce and come up with their own plan to share custody during their separation. If the parents are on good enough terms to engage in these kinds of negotiation themselves, they can simply sit down and amicably develop a temporary agreement outlining how child custody can be fairly handled until they decide to reconcile or divorce.
Temporary Child Custody Order: In the event separated parents are not able to come to an amicable agreement, or as Luke experienced, one parent is uncooperative or obstructive, the parent can go to court to file for a temporary child custody order (called in legal terms a “pendente lite” child custody order) to cover the period of separation. Until a final judgment is made, the Court is directed to determine temporary custody based on the best interests of the child with due regard to the caretaking arrangement that previously existed.
Whichever route is used to develop a temporary plan to cover separation, a permanent order can be put in place when the divorce is finalized.
In Luke’s case, working with an attorney to file a temporary motion and then attending court on the appointed day would likely be the best route for establishing designated times he can be in contact with his children.
Bottom line? It takes much more than hurt feelings on the part of one spouse, no matter how valid, to stop the other parent from seeing his or her children. If you have recently separated and been told by your spouse that you can’t see your kids, please contact us to discuss your rights and the best way to move forward.