Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
My brother is separated from his wife. She sent him a text message saying that if he signed the mortgage of their house (which he isn’t living in but she is with her boyfriend) to her, then she would let him see their daughter. Can she do that? Does he have any recourse?
Generally, courts treat property division and child custody/visitation separately. If your brother and his wife already have a custody agreement (also called a parenting agreement) approved by the court, your brother and his wife must follow this agreement. If one or the other does not follow it, he or she could be held in contempt of court. Your brother may be required to make certain financial contributions. Although it would be unusual for a court to require a person to refinance a home, the agreements with the court may require that he keep the family home for his child.
Regardless of whether he may be required to keep the house for his child or not, he cannot be prevented from seeing his child unless his wife obtains a court order limiting his access to his child. Although how courts deal with these situations vary from state to state and even judge to judge, the general trend is to ensure that a child can maintain a relationship with both parents. This means that courts will generally not allow visitation to be used as punishment. When deciding custody arrangements, courts will consider what is “normal†for the child, as well as whether a parent is a “friendly parent,†meaning he or she facilitates a relationship between the child and the other parent.
As already stated, if your brother has a custody agreement, it must be followed, and his wife could be held in contempt of court for not following it. Even if he does not have an agreement, he should be saving any correspondence from his wife limiting his access to their daughter. He can use this information to show a judge that his wife is not being “friendly.†He should also continue to attempt to arrange visits and to communicate with his child. This will show a court that he is not walking away, but rather is being prevented from being involved in his child’s life. Of course, all of this should be done with as little conflict with his wife as possible: his goal should not be to punish his wife or to take his daughter, but to ensure that he can maintain a relationship with his daughter.
Custody battles can be very difficult legally and emotionally. Although it is possible for a person to represent himself in a custody battle, a family law attorney can provide invaluable assistance that can protect your brother’s rights and possibly set him up for the best outcome. Your brother should consult an attorney who can look at his specific circumstances to best advise him on how to approach these situations in ways that will protect his long-term legal relationship with his child.
