Cincinnati Family Law & Divorce Blog: Can My Spouse Keep The Children From Me?

Not all divorcing parents can agree on when the children should spend time with each parent. In some higher conflict instances, this disagreement may result in one parent attempting to withhold the children from the other. What are your options if this happens to you?

It depends on where in the process you are. If no formal divorce proceedings have been initiated with the Court, then both you and your spouse retain full legal custodial rights to your children as their parents. This can become complicated when you are not residing in the same home. When there is no Court order in place, one parent can retain custody of the children to the exclusion of the other parent so long as that parent stays with the children in the same physical location. If the withholding parent chooses to drop the children off at school or with a childcare provider, the other parent could pick the children up and then also attempt to withhold them, creating a very negative pattern or even worse, a literal tug-of-war.

For this reason, it is extremely important for separated couples to agree upon a shared time schedule. Parents can and often do enlist the help of their attorneys in negotiating a temporary allocation of parenting time while they attempt to work through a negotiated dissolution of their marriage. If this is impossible, then one spouse must institute divorce proceedings so the court can make an order allocating the time between parents. However, it may take several weeks before such an order is issued which can result in one parent being deprived of contact with their children during this period. This can be terribly frightening and frustrating but our courts simply aren’t able to address these matters immediately. Be aware that a court will likely look very unfavorably on a parent who has refused contact between a child and parent. This may suggest that this parent cannot be trusted with good parental judgment in the future.

If a court order is already in place and a parent still attempts to withhold the children, that parent will be in contempt of the court’s order. Because a finding of contempt must be made by the court after an evidentiary hearing, it is not cause for an immediate arrest by the police as is a common misconception. Despite this, the police may be willing to assist you in enforcing the court’s order and convincing the withholding parent to turn over the children. However, you should think carefully before contacting police in this instance, as such a scene can be very traumatic for children. Instead, you should attempt to speak rationally with the other parent or try involving your attorney before resorting to police interference. If none of these efforts are successful, the court will often award makeup parenting time upon the finding of contempt.

Returning to the question posed in the title of this article, the answer is yes, a parent can keep the children from the other parent and it may take a little time before the problem can be addressed by a court. It is highly preferable if there can be a temporary agreement between parents, prior to separating, as to how the children will spend time with both parents. Such an agreement can be placed in writing and will likely be enforced by a court.

If you are not married to the other parent of your child, the rules are quite different than what is discussed in this article for married parents. Look for a future Beth Silverman & Associates blog post regarding the rights of unmarried parents.