Father Denied Visitation Rights by Out of State Mother

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Yes, it was just between them; it was typed, and both parties have copies, but it was not signed or blessed by a judge or mediator.

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Here's the problem. Court orders and ONLY court orders are what count. THEY are what gives an unmarried father rights. Without having a court confer those rights, they don't exist, and therefore there are no rights to be enforced on dad's behalf. By NOT doing this the RIGHT way, way back then, dad is now in a position with NOTHING that can be enforced against mom, and he's going to have to now fight this on mom's turf in her new state (assuming she's been there with the child for 6+ months).

For the benefit of other fathers lurking on the thread, you need to know this: writing up and agreement between you and mom means NOTHING, legally. Don't be lazy, cheap, or gullible. If you want legal rights to your children, and you're not married to the mother (which would give AUTOMATIC rights), then you need to establish any visitation order VIA THE COURTS. If it doesn't happen in COURT, it doesn't count and can't be enforced, no matter how great your agreement sounds, how official it looks, how many notaries sign it, or what mom tells you.

Court. Get there. If you're not sure how or what to do to make that happen, then get thee to an attorney...and then to court. It really IS the ONLY way. Trying to play catch up when NOT having a court order and mom moves out of state is going to be doubly or tripley (or more) expensive and time consuming than dealing with getting your rights in place in court ASAP, or at least while in the same state.

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Quoting aardvarc

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Here's the problem. Court orders and ONLY court orders are what count. THEY are what gives an unmarried father rights. Without having a court confer those rights, they don't exist, and therefore there are no rights to be enforced on dad's behalf. By NOT doing this the RIGHT way, way back then, dad is now in a position with NOTHING that can be enforced against mom, and he's going to have to now fight this on mom's turf in her new state (assuming she's been there with the child for 6+ months).

For the benefit of other fathers lurking on the thread, you need to know this: writing up and agreement between you and mom means NOTHING, legally. Don't be lazy, cheap, or gullible. If you want legal rights to your children, and you're not married to the mother (which would give AUTOMATIC rights), then you need to establish any visitation order VIA THE COURTS. If it doesn't happen in COURT, it doesn't count and can't be enforced, no matter how great your agreement sounds, how official it looks, how many notaries sign it, or what mom tells you.

Court. Get there. If you're not sure how or what to do to make that happen, then get thee to an attorney...and then to court. It really IS the ONLY way. Trying to play catch up when NOT having a court order and mom moves out of state is going to be doubly or tripley (or more) expensive and time consuming than dealing with getting your rights in place in court ASAP, or at least while in the same state.

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This is something i've always been confused about, Married couples who divorce, until an order is signed, they both have equal rights to the children, since paternity was establish, by their marriage, right? Why doesn't that same logic carry over to unmarried parents? Isn't paternity the thing that establishes the rights? When an unmarried father establishes paternity, isn't he in the same 'box' as a divorced father, even without an order?

I've never understood this, i just can't get it to make any sense in my head. I don't understand the LEGAL difference. I know, it's not my thread, so i shouldn't post questions to it, but everytime i see situations like this, i just get more and more confused.

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Quoting SuperPop

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This is something i've always been confused about, Married couples who divorce, until an order is signed, they both have equal rights to the children, since paternity was establish, by their marriage, right? Why doesn't that same logic carry over to unmarried parents? Isn't paternity the thing that establishes the rights? When an unmarried father establishes paternity, isn't he in the same 'box' as a divorced father, even without an order?

I've never understood this, i just can't get it to make any sense in my head. I don't understand the LEGAL difference. I know, it's not my thread, so i shouldn't post questions to it, but everytime i see situations like this, i just get more and more confused.

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Its simply the law. Marriage confers legal rights and responsibilities that do not exist in an unwed situation.

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Quoting SuperPop

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This is something i've always been confused about, Married couples who divorce, until an order is signed, they both have equal rights to the children, since paternity was establish, by their marriage, right? Why doesn't that same logic carry over to unmarried parents? Isn't paternity the thing that establishes the rights? When an unmarried father establishes paternity, isn't he in the same 'box' as a divorced father, even without an order?

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The legal issue comes at the practical level: yes, parents in a marriage have automatic equal rights, and establishment of paternity by an unwed father does confer the standing of parent, HOWEVER, the problem comes in that without a court's order establishing visitation, even MARRIED parents can find that they lack anything that can be ENFORCED. Let's see if some examples will help clarify (and don't feel bad about the confusion, it isn't an easy thing).

Situation 1, married parents: mom and dad get married and have a child. One parent gets irked at the other, takes the child, and goes to stay at their parent's home for a few weeks, pondering whether to return or seek divorce. During that time, the parent left behind wants the child back. Parent who actually has the child with them says "hell no, bite me". Left behind parent brings the police and shows up at grandma's house, demanding the child back. Police have no standing to force the child to be turned over. Why? Because the child is already in the care and custody of a legal parent, AND there is no court order to the contrary (such as might be issued when a divorce is filed). Left behind parent goes home empty handed to call that divorce attorney and seeks a temporary custody order, asking the court to order that the child be turned over. THAT is an order police can act upon. No, it's not parental kidnapping, since both parents are afforded that ability to have lawful control. But don't confuse that with there being the ability to demand the child back. The issue is that once one parent HAS that control, the other parent or even police can't force that lawful control to be terminated or changed. Police aren't going to officiate at a physical tug of war over the child (which is essentially what it takes when parents are married; whichever one grabs the child gets the child). Instead, THAT will take a court order.

Situation 2, unmarried parents: with unmarried parents, only mom has any legal rights until a court says otherwise. Fathers have to, at minimum, establish paternity before they are recognized as parents. However, simply being recognized as a legal parent doesn't confer automatic custody or visitation. Say mom won't let dad see the child. Dad brings police, demanding to see his child. Again, police take no action, because mom is legal parent and the law favors status quo. No legal reason for police to interfere with mom's possession, even though dad is also a legal parent. BUT, lets say that mom drops the child off at dad's while she works, vacations, etc. Then mom shows up at dad's to collect the child, and dad refuses to give the child back. When mom summons police, dad shows police the birth certificate or paternity papers deeming him a legal parent, and police tell mom to get an attorney and get a court order. Dad is a legal parent, has the child under his care, and police aren't going to step on dad's lawful possession of his own child in mom's favor unless mom can whip out a court's order to the contrary (some states may have very slight differences, but for the sake of argument, police have no more reason to take the child from dad than they'd have to take the child from mom). Police and mom leave empty handed. Now mom is the one seeking an attorney to get enforceable orders in writing from a judge.

Situation 3, unmarried parents. This is the COMMON scenario. Mom has the child. Dad wants visitation. Dad IS legally established as a parent, but does NOT have a court order for visitation. That lack of court order means that mom is under no legal obligation to grant visitation, and police are powerless to act, since again, the child is already in the care of legal parent mom. Legal parent dad has no ability to force exchange of the child without a court's order. In other words, a legal parent, mom, is already in possession of the child, and law enforcement has no impetus to interfere with that legal possession, not even to give the child to the other legal parent. Not until a court orders otherwise.

So it boils down to this: there is a difference between having parental rights, and having rights that are enforceable or that will cause ACTION to occur. Again, when there are two legal parents, whichever one actually HAS the child has the upper hand. Moms who turn children over to dads without a custody order put themselves at risk of dad being able to enforce that possession and not give the child back - not until mom does what? Gets a court order. That's why the prevailing legal advice for moms is to NOT give up with child without there being a visitation order in place - because without one mom often can't make dad or police return the child. But that is very different than asking law enforcement to make mom give dad the child in the first place, which they can't and won't do without a court's order.

What both of these situations have in common is this: when dealing with two legally established parents, POSSESSION is 9/10ths of the law. So long as the child is in the care and custody of a legal parent, then police are really limited in any action, without a court order clearly telling them which parent has which rights and exactly what those rights might be. Without such an order, status quo prevails and police have no legal standing to take the child from a legal parent, regardless of which parent, even at the request of the OTHER legal parent. Whoever has the child, keeps the child. Again, until a court says otherwise.

Having a right, and being able to have that right ENFORCED are not the same thing. Enforceable rights hinge on court orders, sometimes even when married, but ALWAYS when NOT married and not in possession of the child. When not married and not in possession of the child, a dad is dead in the water, EVEN IF established as a legal parent, because no one is going to interfere with a mom's legal possession of the child and make her give the child up or allow any visitation or contact, until a judge says otherwise.

I know it's complicated, and these examples maybe a bit over simplified, but does that help any?

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Quoting aardvarc

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Having a right, and being able to have that right ENFORCED are not the same thing. Enforceable rights hinge on court orders, sometimes even when married, but ALWAYS when NOT married and not in possession of the child. When not married and not in possession of the child, a dad is dead in the water, EVEN IF established as a legal parent, because no one is going to interfere with a mom's legal possession of the child and make her give the child up or allow any visitation or contact, until a judge says otherwise.

I know it's complicated, and these examples maybe a bit over simplified, but does that help any?

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That simplifies it SOO much, so using this thread as an example:

Father has determined paternity, but there is no Custody/Visitation order: Dad could go over to mom's state, ask mom to see child and drive back to his state with the child, refusing to give back to mom until a custody/visitation order is established? I always thought this was illegal, that even though he had legal paternity, that if mom said she wanted the child he HAD to give the child back.

Wait! I have to Edit to add this part! I DO NOT CONDONE THIS, DAD, IF YOU ARE THINKING ABOUT THIS, DON'T DO IT. WHEN IT COMES TO COURT THE JUDGE WILL NOT LOOK KINDLY ON YOU AND IMO, MAYBE QUASI ILLEGAL! (just realized maybe i shouldn't have posted that to avoid giving OP very bad ideas)

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Quoting SuperPop

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That simplifies it SOO much, so using this thread as an example:

Father has determined paternity, but there is no Custody/Visitation order: Dad could go over to mom's state, ask mom to see child and drive back to his state with the child, refusing to give back to mom until a custody/visitation order is established?

Wait! I have to Edit to add this part! I DO NOT CONDONE THIS, DAD, IF YOU ARE THINKING ABOUT THIS, DON'T DO IT. WHEN IT COMES TO COURT THE JUDGE WILL NOT LOOK KINDLY ON YOU AND IMO, MAYBE QUASI ILLEGAL! (just realized maybe i shouldn't have posted that to avoid giving OP very bad ideas)

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He and I both know that would be a bad idea. While we desperately want to see his daughter, we know it must be done legally in a way that will keep him in good standing with the courts when we do get a date. Neither of us have any desire to fuel her mother's fire any more than it has been. Just trying to stay level-headed throughout all of this, and I really appreciate everyone's input and advice.

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Quoting aardvarc

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Here's the problem. Court orders and ONLY court orders are what count. THEY are what gives an unmarried father rights. Without having a court confer those rights, they don't exist, and therefore there are no rights to be enforced on dad's behalf. By NOT doing this the RIGHT way, way back then, dad is now in a position with NOTHING that can be enforced against mom, and he's going to have to now fight this on mom's turf in her new state (assuming she's been there with the child for 6+ months).

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So will he need to travel to SC, even though all previous court proceedings have been done in VA? I was under the impression that visitation could be established through the court where a previous order had been issued.

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Father has determined paternity, but there is no Custody/Visitation order: Dad could go over to mom's state, ask mom to see child and drive back to his state with the child, refusing to give back to mom until a custody/visitation order is established?

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The problem comes in that although true that he may be technically in lawful possesion of the child, doing things like crossing state lines when there's no visitation order in place is going to bite a dad hard in the butt in court when such an order IS sought by mom - and given that such action would make dad appear to be on the run with the child, mom would have a good chances of getting an order issued on an emergency basis. Emergency orders tend to be very bad, and when the court feels the need to issue one, the parent against whom that order was issued is already halfway up the judge's butt before dad ever speaks a word in court. Judges know "smash and grab" attempts to take children when they see it, and such antics clearly tell the court that dad is going to be a handfull for the court to deal with, and courts don't like handfulls of anything. Pulling a stunt like this would likely cause the court to not only give mom SOLE legal AND physical custody, but also order that dad's access to the child be supervised, for a LONG time. A dad doing this better make the BEST of the time spent with the child in the car, since it's likely to be the last for a long time that isn't being enjoyed in a supervision center in mom's area. (Still having access, but CLOSELY controlled access.)

And, "smash and grab" jobs across state lines tend to make both mom's and police nervous. Even being a legal parent, a "be on the lookout" could be issued nationwide, asking law enforcement to watch for and stop the vehicle or even visit dad's residence to check the wellbeing of the child. And, if mom has gotten that emergency order, law enforcement may take the child away right there on the side of the road. So, even though a legal parent, acts like taking a child across state lines and not honoring the promise to return the child to mom tells the court that dad is a HUGE risk to just take the child and disappear.

We come again to "legal" versus "practical". While dad MAY not be facing any criminal sanctions for doing something like this, on a practical level, taking the child out of state, especially if there has been contention over visitation in the past, is going to cause the court to effectively kick dad in the gonads. Repeatedly. And any chance dad may have had of getting a decent deal in a visitation order will be effectively gone.

"I know, I'll just schmooze mom into giving me the child, then I'll flee the state with the child". <----The only dad's who get harsher treatment from the courts are those who physically or sexually abuse their children. Dad HAS an avenue by which to get legally enforceable visitation with his child. He needs to USE that avenue. Giving the court even a whiff of the idea that he's prepared to do anything it takes to "get" his child means that he's going to be seen as a huge RISK to the child, and, that he has NO respect for the court - none of which bodes well for him or seeing his child without a guard peering over his shoulder.

Those examples I gave above...note how none of them included issues like either parent being on drugs, either parent having mental health issues, or either parent taking aggressive or unusual physical action regarding the child (such as hiding the child, or taking the child across state lines)? Any and all of those additional factors can DRASTICALLY change the answers.


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So will he need to travel to SC, even though all previous court proceedings have been done in VA? I was under the impression that visitation could be established through the court where a previous order had been issued.

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Jurisdiction generally follows the child, or, more specifically, jurisdiction is generally held by the state within which the child is a legal resident (for most states, 6 months). Whether Dad can attempt to file in VA depends on exactly what he's asking the court to do, but if the child is now recognized as a resident of SC, mom can similarly motion to have the case transferred to SC. Efffectively, if the child becomes a legal resident of SC, the VA courts can't do much that will be enforceable, or, dad will have to get his orders recognized in SC. The court in VA may or may not allow additional filings on the case (especially if there are changes being sought).


Given that the child is at least now physically in a different state, even if not yet a resident, dad REALLY REALLY REALLY needs to be working with an attorney. Mom has lots of ways to throw legal obsticales in his way, and if she succeeds in doing it long enough, dad is going to need a gold mine AND a bull dog attorney to fight this in another state.

Once again, we have no plans of doing anything that will hurt him in court. We want to do everything by the book, and get him as much time as he can; he has too much to lose if he were to carry out something so drastic. Although there may be ill-will between them, he has no intention of separating his daughter from her mother.

(Off topic - I figured out for OhioGAL is, i knew if i just looked for the smartest person, i would figure it out)

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Quoting aardvarc

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Jurisdiction generally follows the child, or, more specifically, jurisdiction is generally held by the state within which the child is a legal resident (for most states, 6 months). Whether Dad can attempt to file in VA depends on exactly what he's asking the court to do, but if the child is now recognized as a resident of SC, mom can similarly motion to have the case transferred to SC. Efffectively, if the child becomes a legal resident of SC, the VA courts can't do much that will be enforceable, or, dad will have to get his orders recognized in SC. The court in VA may or may not allow additional filings on the case (especially if there are changes being sought).


Given that the child is at least now physically in a different state, even if not yet a resident, dad REALLY REALLY REALLY needs to be working with an attorney. Mom has lots of ways to throw legal obsticales in his way, and if she succeeds in doing it long enough, dad is going to need a gold mine AND a bull dog attorney to fight this in another state.

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Would working with a mediator make it easier for both parties, considering the fees associated with travel, attorney fees, and multiple court dates? It's a seven hour trip from there to here, so it will be difficult to say the least.