The following is a real question concerning child visitation published in the Temecula Valley Newspaper, and answered by the family law and divorce attorneys of Famularo & Associates:
Dear Famularo & Associates:
My husband and I separated about 2 weeks ago, and he has since moved to Tennessee. We have two small children ages 3 and 4 years. There is no dispute about child custody. We both agree the children should continue to live with me in California. Although we haven't filed for divorce yet, we have agreed on the amount of child support and spousal support he will be paying me. My husband wants visitation with the children in Tennessee for two weeks. I don't know if I should send them. He is a great father, but what if he doesn't give them back to me after two weeks?
--GH in Murrieta
Your fear about your husband not returning custody of your children to you after two weeks is a valid one. While it is likely the court would order your husband to return the children if he failed to do so, the outcome of any court hearing is always unpredictable. There is simply no guarantee the court would order your husband to return custody to you if you to allowed visitation in the state of Tennessee without first obtaining a court order. In theory, you could write up a visitation agreement on a piece of paper and insist you both sign it before sending the children to Tennessee. However, this, too, is risky. Quite frankly, if you send your children to Tennessee without an actual court order, you risk losing custody of your children forever.
You should not send the children to visit their father until after a divorce has been filed and custody and visitation orders have been made. Until you file for divorce, the court does not have power over custody of your children. Until the court makes custody and visitation orders, you have no guarantee you will get your children back from Tennessee. You need a court order for custody and visitation in your hand before you put your children on an airplane. Once a divorce is filed, you can either type up a custody and visitation agreement, sign it, and then have the court sign and file it; or attend a court hearing and have the judge make orders in open court. Either way, until you obtain a court order for visitation, you should not send your children to Tennessee.
Once a divorce is filed, the court must decide visitation for your husband. In deciding visitation, the court will try to establish a court order that ensures frequent and continuing contact with both parents. The court will likely order you to send your children to visit their father in Tennessee at some point in the divorce proceeding. A two week visit for your children is reasonable. Unfortunately, your children are not old enough to travel on their own, so someone will have to escort them on the airplane. Since your husband is the one who moved away, he may have to pay the children's airfare to and from the visit (but not always). As for who pays for the airfare of the escort, and which parent will be ordered to escort the children on the airplane, this will depend upon you and your husband's relative circumstances. For instance, if you are a stay-at-home mom, and your husband is working full time, the court might order you to escort the children (because you have the time), and your husband to pay for your airfare (because he has the money). If your husband's mom lives in Tennessee and frequently visits California, perhaps the visits can be timed so Grandmother escorts the children on the plane. In short, when making visitation orders, the court will do what it thinks is fair. In addition to periodic visits in Tennessee, your husband will have liberal visitation whenever he visits California.
If you have any questions about custody or visitation, or any other divorce or family law related issue, please do not hesitate to contact the family law lawyers at Famularo & Associates to set up a free consultation. Famularo & Associates serves the geographical areas surrounding Hemet, Temecula, Murrieta and other parts of Riverside County, California.
You may also visit one of our web sites for additional information: http://www.temeculadivorce.com/index.html or http://www.familylawyerintemecula.com/