[niki818]

My husband hasn't seen his daughter in 4 yrs due to a messy visitation situation not that it makes it OK but that is the reason. He pay child support and is not behind. He would like to have his visitation back and doesn't want to miss out on any more of her life. Someone advised that since he has not had contact in 4 years he will loose in court as she will say he abandoned their daughter? Is this something she can claim, he pays his support he has no contact phone number for his daughters mother only an address to send money? Please any help would be appreciated! (We live in NY)

[grammadidi]

In New York, child abandonment is a felony. As such I think it would be extremely difficult to prove that a father who didn't visit his child, yet continued to pay child support would be guilty of abandonment. Regardless, in NY, a person is guilty of abandonment when a person is legally charged with the care or custody of a child less than 14 yrs. Old actually deserts that child in any place with the INTENT to wholly abandon it. Another interpretation of the law is that if he abandoned the child for a continuous period of a year or more. That would likely be best proven if his whereabouts and/or identity were unknown; if he left the child in a situation where she would suffer serious harm; if he failed to support her; and, the questionable one - if he failed to maintain continuous contact. Failure to maintain contact can, in some situations be considered but again, I think that the fact that he wasn't delinquent in his support payments would help his cause. A judge would likely be hesitant in finding your husband guilty of a felony charge under those circumstances. I am pretty sure that your husband's lawyer would argue that if his intent was to wholly abandon it that he wouldn't have continued to support the child. In addition, the fact that there was a messy visitation situation would probably help his case.

Your husband is entitled to visitation with his daughter, although the mother could request supervised visitation due to his lengthy absence which I think might actually help him if the visitation has been an issue in the past. The fact is, even if a parent isn't paying support he/she is still entitled to visitation (unless there was a legal reason) as neither one has any bearing on the other.

So, yes, the mother could claim abandonment, but she wouldn't likely get anywhere with it. It would be in your husband's best interests to try to work out a suitable way of reintroducing himself into his daughter's life in a healthy way with the least amount of stress on the child. No matter what, he must have the best interests of the child at heart.

He might qualify for a half hour free consultation with a lawyer and/or for legal aid. It would be best to consult a lawyer familiar with family law in any case.

It is a good thing that he wants to be a part of his child's life and I hope the fear of being found guilty of abandoning his child doesn't stop him. She will need him in her life, especially as she gets older.

Hugs, Didi

[ScottGem]

To clarify this please review this sticky: https://www.askmehelpdesk.com/family...st-364259.html
It is always a good idea to browse around and look for FAQs or similar questions before posting.

You speak of a "messy visitation situation". Is there a court order on visitation? You say you are in NY but where is the child and what court issued the original custody/visitation/support order.

Whether the mother can use abandonment to change the visitation order depends on the answers to my questions.

[niki818]

Thanks for the responses. He does have court ordered visitation however during his last visit (which is why we haven't seen her in so long) a few things happened that prevented him from going back because he always has his daughters best interest in mind. He is supposed to have her every other weekend and we were attending our last 'supervised' visit so she could become familiar with her father when it all ended. I am certain that will be the path we take because by no means would we want her to come to our home and be scared. She lives about 3 hours away from us now so that is what would make the visitation issue a bit more difficult but we are willing to try and work something out.

We will of course obtain a lawyer as every other time we went to court (Hamilton County) we feel that because in most cases women are favored and it was a small town that the child's mother is from that the judge favored her. This time court is in Franklin County so since it is a new judge and we will have an attorney to represent us that we will get better results.

[ScottGem]

There is a lot not being said here. What I'm gathering is that 4 years ago, he was exercising his alternate weekend and something (unspecified) happened that caused him to stop exercising his rights. Also you refer to this visit being "supervised". Does this mean the court order was for supervised visitation? If so, under what terms? This info is very pertinent to our being able to properly advise you.

Also left unsaid is what he has done during the ensuing 4 years to try and exercise his rights. Was the mother blocking those rights? If so, did he not try to get her cited for contempt of court? This is also essential info.

You are not required to provide this info, especially if you feel its too personal. But if you do not provide it to us you NEED to retain an attorney and I am sure the attorney will ask the same questions and require the same info.

[grammadidi]

Best of luck to you all. I hope all works out for your step-daughter... after all, that's what it is all about. By the sounds of things, supervised visitation until she is older would probably be best.

Hugs, Didi

[Fr_Chuck]

First and foremost since he has paid his child support he has not abandoned the child, And no one has explained what issues "EXACTLY" was the messy visitation.

But I see no reason he can not get visits, he may have to do supervised again for a while. But he may need to go back to court to make the custody parent allow it, if they will not just go back to the existing custody and visit orders on file

[niki818]

I appreciate the answers.. the court order was for 5 supervised visits only because his daughter really didn't know him and we did not want her to be uncomfortable coming to our home. The visits were being held in a relatives home (the grand mother of my step daughter) when the child's mothers boyfriend came to the home and started issues with my husband.( this is what I am referring to when I state 'messy situation' My husband knows he is easy to fly off the handle and would do nothing of the sort in front of his daughter as he loves her more then anything in the world. Due to this he decided it was in his best interest to not go to his FINAL supervised visit. After that the child's mother moved further north (she now lives 3 hours away as opposed to the 1 she originally lived) and we had no contact phone number nor could we get one... just of course the address to send money to.

He DID try to take her back to court HOWEVER the judge in that lovely small town of hers threw his petition out of court stating he did not have any cause (at this point he did not have a lawyer) This time we will have a lawyer so I was just asking opinions on this site not looking for an exact answer just some help trying to see if what I was told is true or not.(just to clarify this as I feel that some responses appear as you think I would not be obtaining an attorney).

[ScottGem]

After that the child's mother moved further north (she now lives 3 hours away as opposed to the 1 she originally lived) and we had no contact phone number nor could we get one...just of course the address to send money to.

This is a key point here. If the mother moved without notifying the court AND more importantly without informing the father where he could continue with visitation, then she was in violation of the court order. Your attorney needs to make sure the court is aware of this. In fact, if she was deliberately hiding the child from him, she could be prosecuted for parental kidnapping.

I also suspect there was more to the previous judge throwing his petition out. Because, from what you are saying, the mother was clearly in contempt of court. So I can't see a judge telling him he had no cause.

Good luck and keep us posted.

[grammadidi]

Just a quick addendum... if your husband is going to request supervised visitations these should initially consist of the 'supervisor' (I would suggest Children's Services so you don't have to deal with the child's mother's boyfriend), your husband and his daughter. Later on, if the goal is that she will eventually come to your home for visits, then you should be included in these visits. In addition, if the visits are to move to your home later I would suggest that the child be dropped off and picked up at Children's Services to avoid issues.

All of these measures serves multi-purposes. It allows someone from Children's Services to watch the bond grow between father and daughter, then step-daughter and father while also enabling them to see the character of all involved. If there are problems, as long as your husband doesn't over react, he has established that he is not the cause of the problems.

I do hope your husband will form a close bond with his daughter that will last a lifetime and also hope you will keep us informed.

Hugs, Didi

[niki818]

Thanks everyone!

We are hoping for the best... me especially as I have been with my husband throughout this entire 7 yr battle so I am hoping this time things will be different. Especially since we now have a child and I want him to be able to meet his big sister.

During all of the previous visits I was present so that is no issue the issue was where we had to have the visits and in the end that is what led to the confrontation. This time my husband will fight for a different location for the supervised visits so this situation does not happen again he we will be able to spend the quality time with her.

The initial court order for visitation was 5 supervised visits and then she was able to spend the weekend every other weekend. If we can't work that out since they now live so far away and she is in school we hope something can be worked out! I appreciate everyone's imput! Court is in a little over a month so fingers crossed...

[Fr_Chuck]

I will agree, I know here in Atlanta as other places there are even centers used for supervised visits, and there should be a independent couselor or social services present to stop either side from being inproper