Custody in Two States out of Wedlock
By Steven Mindel

This FAQ was first published in Couples Company and is reprinted with their permission.

My son's mother chose not to let him carry my last name - but my name is on the birth certificate.  I have always paid child support, and spent time with my son most  times on a daily basis. A little over a year ago my son's mother decided to move to North Carolina - I was devastated.  I have continued to communicate via phone with my son several times a week and once a month travel to him for a long week-end.  The cost is incredible!  The mother will not let him come to Florida to visit.  My son lives with his mother &  grandparents (all who are good to him - but smoke cigarettes and eat poorly) and his 2 cousins (whose parents have turned care over to the grandparents). 

I would like to know what parental rights I have.  If it was a perfect world my son would be living with me. I would like to know if, as a single dad, I can have any rights to visitation here at my home and what other rights I may have. I look forward to a response.

The short answer to your question of whether you have rights to visitation with your son at your home in Florida is yes. The key questions which must be answered are when and under what circumstances will you would be allowed visitation with your son at your home in Florida.

Prior to starting any legal action to enforce your parental rights, it is my recommendation that you speak to the child's mother regarding utilizing a psychological professional to assist you and your son’s mother in developing a parenting plan which will address the concerns of both the child’s mother and you. If utilizing a psychological professional is not possible in your particular situation, you can also avail yourself to the local mediation services which almost all judicial districts have for mediating family law child custody disputes.

If settlement is not a possibility through mediation, you will need to file an action to establish your paternity and to have a court order the parenting plan. Since your son has been living in North Carolina for more than six months, the North Carolina court will ultimately have jurisdiction over the issues of child custody and visitation. Therefore, given that North Carolina will ultimately be the child’s home state, you will probably want to file the action in North Carolina. Nevertheless, since the child was born in Florida, you could file the action in Florida as to issues of child support. You should discuss the issue of the choice of courts with both attorneys in Florida and North Carolina. The biggest downside to filing the action in North Carolina will be the distance that you will have to travel to attend hearings, depositions and other court proceedings, and the difficulty in locating an attorney in North Carolina. You can check with the North Carolina Bar Association to find a certified family law specialist in North Carolina, or speak to your local attorney to see if she or he has a recommendation for a Florida attorney.

In deciding when your child will be allowed to travel with you to Florida, the decision maker, whether it be the courts or through mediation will be concerned with the issue of the safety of your child, as well as the costs associated with the various options. Since your child is only 3½ years old, it is unlikely that the child’s mother and/or the courts will believe that the child is old enough to travel on his own. Therefore, at least for the near future, any plan to travel with the child will require either you or the child’s mother to travel with the child. The fact that your child is not in school will provide some flexibility with regard to the dates and times that the child will be available for travel. Your concern over the costs of the travel is a common issue for parents with children in other states. Generally, most courts will allow for provisions in the child support order to allow for a sharing of travel related expenses. You will need to speak with a qualified family law attorney in the jurisdiction where the case is ultimately handled.

Your concerns regarding your child’s exposure to cigarette smoke are well founded. Studies have clearly linked exposure to second hand smoke with lung cancer and other diseases. Many courts have taken judicial notice of the association between exposure to second hand smoke and diseases of the heart and lungs, and will routinely make orders prohibiting parents from smoking in an enclosed area with children present. You will need to check with an attorney in your jurisdiction to determine whether or not your jurisdiction is a jurisdiction that recognizes the link between second hand smoke and the harmful effect on children.

Your efforts to stay in contact with your son will reap large benefits over the long run. Given your son’s young age of only 3½ years, the key issues that you will need to deal with are going to be age appropriate decisions regarding when your child can travel by himself, and for how long your child can stay with you at any given time. In situations where the parents live long distances apart, the courts will strive to provide a parenting plan which will provide large blocks of time to each parent in an effort to minimize the travel that the child has to undergo. In the short run, take advantage of all of the visitation that you can accomplish traveling to North Carolina until such time as your son is old enough to spend large blocks of time with you in Florida. Keep up the good work.

Custody and Marital Laws vary from State to State, and situations are unique to each person.  Please use this legal advice only as a guide to questions you should be asking your own legal counsel if you are engaged in a similar situation.