The Father of My Child Has My Son & Won't Give Him to Me, and Neither of Us Have Custody

By Jennifer Kiesewetter, J.D.

The Father of My Child Has My Son & Won't Give Him to Me, and Neither of Us Have Custody

By Jennifer Kiesewetter, J.D.

When a couple with children separates or divorces, each parent wants to spend significant time with their child. When this couple does not have a custody agreement, then visitation with children can become more complicated. If the father of your son refuses to return him to you, without a custody agreement, a court will determine custody and visitation based on whether you're married or divorced from the father. If you've never been married to the father, separate custody rules apply.

If the father has consistently refused to return your son to you, then your child's father may face significant consequences. Courts don't look fondly upon parents who deprive the other parent from spending time with their child. Doing so doesn't put those parents in good graces with the court, and further, such actions aren't in the best interests of the child.

Married to the Father

If you're still married to your son's father, either through separation or not yet filing for divorce, then under the law, both you and the father have equal physical and legal custody. This doesn't change until a court alters this arrangement. However, even if you both have physical and legal custody, your child's father may be able to keep your son since, like you, he has both physical and legal custody.

If you are still legally married to the father, but he refuses to return your son to you, you should file an emergency motion with your local family court to determine visitation and custody. By submitting an emergency motion, a court will typically hear your case in a few days as opposed to a month or more.

With a court order, both you and the child's father must comply with the judge's decision. If your son's father does not comply with the order, then you may take him back to court to enforce either custody or visitation.

Divorced from the Father

In most divorces, either the parents agree to, or the court decides, custody and visitation, setting forth the details in a custody agreement or a parenting plan. However, if you have never established a custody agreement with your child's father, then you should file an emergency motion with the court to determine custody and visitation.

If your son's father rarely disrupts your visitations with your child, then you should discuss the situation with your ex-husband. He could have specific life changes that have caused him to keep the child longer than usual, such as a change in work schedule. However, the father can't keep the child longer simply because he missed previous visitation times due to a conflict.

Never Married to the Father

When you've never been married to the child's father, and no custody order exists, then you, as the mother, have sole legal and physical custody of the child. The father, in this case, must petition the court for custody or visitation after proving paternity.

If the father refuses to return your son to you, then you should first contact your local police. If the police can't assist you under state law, you should file an emergency motion with the court asking the court to return your child to you.

Custody and visitation issues are involved. Although you can petition the court alone, you may want to consider hiring an experienced family law attorney to help you in these situations. In any event, don't try to take the law into your own hands. You should go through the court process, allowing the court to direct your next move.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

Divorce is never easy, but we can help.

Learn more