My ex won’t let me see my kids

                  Unfortunately, all too often in representing men in divorce and child custody disputes, our office hears from men whose children are being wrongfully withheld from them. Now, without a doubt there are times when children should be protected from their fathers, such as when Dad has abused the children, acted inappropriately toward the children, or has an addiction or substance use disorder which potentially puts the children in jeopardy when they are around him. However, when there is no potential danger to the children, it is in those children’s best interests to have a meaningful relationship with both parents, and that certainly includes their father.

According to Missouri law, a child’s father has the legal right to spend meaningful time with his child and develop an emotional bond as a parent. Missouri recognizes that both parents have similar rights to a child unless a court order states otherwise. If your ex-wife or child’s mother is wrongfully preventing you from contact with your children, you do have legal rights and there are steps you can take to protect your legal relationship with your child.

            There are a few issues to consider when you are being prevented from seeing your child.  First, have you established paternity of your child?  You are automatically deemed to be the legal father of a child if you were married to the natural mother at the time of the child’s birth. The state of Missouri defines paternity as the process used to determine whether or not a man is a child’s biological and legal father. Typically, paternity is established by the father in the hospital immediately after birth, when the man signs an Affidavit Acknowledging Paternity.  On the contrary, when the mother is married to someone other than the father of the baby, the mother and husband will both need to complete a document denying paternity.

                  If you have not established paternity, regrettably you don’t have many options if your child’s mother is preventing you from seeing your children. If you are a child’s father, but your name is not listed on the child’s birth certificate, you will need to file a petition for paternity and establishment of a father-child relationship with the court in the Missouri county where the child resides. If either the mother or father denies a man is a child’s father, a court will order genetic testing. Paternity is established when the court issues a judgment of paternity, and the father then has legal rights to parent the child, including visitation.

Steps you can take if your ex wrongfully withholds your children from

you in violation of a court order?

1.        Document as much as possible. If it becomes necessary to take legal action, you must have evidence. Keep detailed notes of every violation. The records should include, the date, time and a detailed description of the incident or violation. In today’s world everyone has a phone with a camera and video, use it.

2.        Try to talk to her. If the relationship allows, discuss the issues with your ex. If this isn’t possible, send an email so the communication is saved.

3.        If you are represented by an attorney, ask the attorney to send your ex a letter detailing your concerns and the potential actions you will take if the violations continue.

The legal remedies available when your ex withholds your children include a motion for contempt, a family access motion or a motion to modify.

Motion for Contempt

Contempt of court or “contempt” is a ruling that a person has violated a court order, obstructed or interfered with a court order, or otherwise interfered with the court’s business. In Missouri divorce and child custody cases, the law allows individuals whose children are “willfully” withheld from them to file a motion for civil contempt in court. If your ex is willfully and intentionally violating a court ordered parenting plan, Missouri Revised Statute § 452.400 authorizes the court to punish the guilty party or take actions to encourage that parent to comply with the court's order.  

Unlike most motions in a family law case, which can be served on the other party simply by filing it with the court, emailing, or sending it to them in the mail, a motion for civil contempt requires personal service. Personal service in Missouri family law means the document is physically given to the party by a sheriff or private process server. Most courts also require the party filing the motion for contempt to ask the court for a hearing date to decide if the motion should be granted. At the hearing, the parent making the accusations of contempt has the burden to present adequate evidence for the judge to find that the other party has violated the court order and therefore is in contempt of court. The accused parent will of course have an opportunity to present their own evidence to dispute the allegations of civil contempt.

                  Consequences for being found in contempt of court includes fines, attorney’s fees and even jail time in more severe instances. In certain circumstances it is within the authority of the court to order sanctions, if those sanctions are designed to compel the offending party to comply with the court’s order. Sanctions in Missouri courts are penalties or corrective measures imposed by a judge on a party for violating court rules, disobeying orders or engaging in misconduct. In even rarer cases, a court may order a temporary “abatement” or pause in a child support order to punish the offending party.

Family Access Motion:

Missouri courts generally require a significant amount of evidence to hold a person in civil contempt regarding withholding child custody. Not only this, but motions for contempt can also take considerable time to come to a final ruling. For situations where a child is being wrongfully withheld, the Missouri legislature has developed the option for parents to file a family access motion. These motions are designed to be fast, the court must advise parties of dispute resolution within two weeks of filing, and the court is required to resolve the matter within 60 days of the filing of a family access motion.

What remedies are available to parents who file a family access motion? Parents whose family access motions are granted may be awarded "make up time" with their child (additional parenting time), fines up to $500, attorney fees, or the other parent may be required to post a bond with the court as a potential additional fine for noncompliance.

 

Motion to Modify

A final, more definitive and long term solution to a custody situation where one parent is withholding the children from the other parent, is the option to file a motion to modify the judgment or custody agreement.  Missouri law requires, in order to modify a previous judgment of dissolution or child custody judgment, the parent filing the motion to show that there has been a substantial and continuing change in circumstances.

If one parent is able to show the other parent has engaged in a continuing and willfull refusal to allow them their parenting time they are legally entitled to under a court order, a Missouri judge is likely to grant a motion to modify.  Remember, one of the factors in determining child custody is a parent’s willingness to allow the child a meaningful relationship with the other parent.  Missouri Revised State Statute 452.375 2 (4).  includes, “Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent”, as a factor in making child custody determinations. If the motion to modify is granted, the original custody agreement is replaced by a new judgment.

If you ex is withholding your children from you, it is important to contact an attorney focused on representing men in child custody matters. Attorney Robert Davis at the Men's Center for Domestic Resolution can help you make sure you get the access to your children you are legally entitled to. Call us at (816) 287-1530. We represent men in child custody disputes in Cass County, Missouri, as well as most of the Kansas City, Missouri metropolitan area.

Attorney Robert Davis at The Men’s Center for Domestic Resolution is Kansas City’s Men’s Right Lawyer!