Making the Argument

The Hard Truth: Absent a Court Order, Both Parents Have Equal Rights

By Michelle Fulton

February 11, 2005

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: I have a son with a woman that I lived with for over six years. We recently split up, and she is refusing to let me see my son. She says that I have no rights to see him because there is no court order saying that I do. I give her money out of every paycheck to help her out, but she still won’t let me see him. When I do manage to see him, he tells me that she calls me names and says I am a bad father. My son is confused and doesn’t know what to think or believe. What can I do to get my ex to stop poisoning my relationship with my son, and what can I do to get my rights to him?

A: This is a common myth in family law, and I’ll do my best to set the record straight and give you the answer you need to at least know where to start. If you are on your son’s birth certificate, then you have equal rights to your son until you or your ex-girlfriend gets a court order that says otherwise. In other words, you can pick him up from school, go eat lunch with him, even go to his house to see him, and she cannot legally withhold access unless there is a court order in place that says you cannot. From the tone of your letter, I’m assuming that there is no court order in place dealing with custody and child support regarding your son. Based on that assumption, she has no legal ground to deny you access to your son. If she is hiding the child from you, your best course of action would be to hire an attorney and take her to court to establish your rights.

Here are some truths regarding parents’ rights that every parent should know when dealing with this difficult situation.

First of all, play fair. Your children did not ask to be brought into this world, and they deserve better than to be placed in the middle of your relationship disputes.

Second, both parents have equal rights and access to the children of the relationship as long as the father’s name is on the birth certificate, there have been no court orders rendered regarding custody and support of the children, and there are no restraining orders due to domestic violence in place. That means both parents have the exact same rights. They can see the children, take the children on trips, attend school functions, speak to the children’s doctors and counselors, and do anything that the other parent can legally do. It takes a court order to establish primary custody.

Third, judges prefer joint custody and frown upon parents who go into court and try to rip each other to shreds and drag their children in the middle. As a result, they usually require parents to attend a seminar on working towards the best interest of the child. Judges like to see parents working together to ensure that the children do not suffer.

Lastly, put your feelings about each other aside and focus on the best interests of the children. By working together to ensure that your children get the best life has to offer, you are giving them the gift of being able to love you both and have a good relationship with you without the fear or guilt that plagues children of warring parents. At times that may not be an easy thing to do, but make it a goal. The rewards will be tremendous and your children will be grateful to you.

As adults, we have a responsibility to our children to set a good example.

In our relationships, sometimes things are said and done that cause hurt, anger, and intense frustration, and those emotions make it hard for us to keep the right perspective. However, we should always keep in mind that our children should not be subjected to our disproval of the other parent under any circumstances. What takes place between the parents is between the parents only and should stay that way. When we draw our children into our relationship disputes and we make negative comments about our spouses/significant others, we are committing a serious no-no in our children’s eyes- we are criticizing someone that our children love and adore. Nothing good comes from that. So please, regardless of your circumstances, always treat each other with respect when in front of the children.

Sadly, there are too many times when one or both parents choose not to take the high road and the end result is a child who feels confused, angry, and at times even depressed because they are drawn into the middle.

The bottom line is this: If a relationship is ending and children are involved, work together for the benefit of your children. It might not be easy, but we all owe it to our children to let them love us without fear or guilt. If you absolutely cannot work things out, then work out a custody agreement that you can both live with and stick to it, and make it a rule to never speak negatively about each other in the presence of the children. Your children’s emotional well-being depends on it.

Michelle Fulton is an attorney at The Fulton Law Firm, PLLC. If you have a legal problem you would like her to address, you may e-mail your request to michelle@fultonlawfirm.com or mail your request to her at 806 Hwy. 3 South, Houston, Texas 77058.

On July 15, 2006, Atty. Fulton will be moving to 806 Hwy. 3 South.

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