My husband and I seperated 9 months ago, and since then he has been in and out of his life, my 3 year old gets very sad almost depressed when he does this. i want to know if i have the legal right to say no until we get custody for the best interest for my son.
Family Law Attorney
Since you and the father are still married, the father has as much of a right to custody of the child as you do. If you ultiimately file for divorce, a court will not look kindly on your refusing your husband access to his son. You need to do your best to work with him and give him reasonable parenting time with the child.
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Divorce / Separation Lawyer
In addition to the advice of my colleague, I want to point out to you the provisions of the Georgia Code from Section 19-9-24(b). Remember that "[a] legal custodian [a parent like yourself who has their rights still intact] shall not be allowed to maintain any action for divorce, alimony, child custody, change of alimony, change of child custody, or change of visitation rights or any application for contempt of court so long as visitation rights are withheld in violation of the custody order."
What that means for you, in practical terms, is that you need to take my colleague's advice here and work with your husband towards a divorce (which it sounds like you want and need) to a point where a temporary custody order controls, and then abide by that Order until your divorce is done.
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It sounds like there is a lot of uncertainty here for you, your son, and the child's father. Many of these uncertainties are legal and others are more practical. You might consider mediation as a way to reach some solid agreements, even if in the short term, about some or all of them. Mediators routinely help parents work out agreements on visitation schedules, child support work sheets, and more.
Some parents bring their attorney with them to mediation, some get legal questions answered in advance of mediation and try to go it alone from there, others mediate an agreement that includes a "revocation clause" so that they have a certain amount of time after the mediation session to have an attorney review the agreement before it goes into effect and allows them to revoke the agreement if they so choose (essentially a means to continue working on it or to walk away from the whole thing if there is something woefully amiss).
Agreements from a mediation are typically filed with a court. For example, some couples will mediate all the terms of their divorce and child matters, thus being able to file for an uncontested divorce or to essentially bring a swift(er) close to any pending litigation.
Mediation usually works best in separation and divorce when the couple is more focused on the problems than getting at each other. It also is a good process for these kinds of issues when both sides have gotten enough information (for example, bank statements, child care costs, health insurance costs, etc.) to be able to discuss the issues where they will be confident in making a decision.
Since you've been separated for many months, you probably have a good handle on many of the financial issues, but whether you both are to a point where you are more interested in conquering the issues rather than each other can only be answered by you. Food for thought.
Nothing in this response should be taken as legal advice nor should it be relied upon.
Because you are still married, the biological father has the same rights to custody of the child as you do. If there are no custody orders in place and you eventually file for a divorce, judges (in general) do not approve of one parent refusing the other contact/visitation with the child/children. I would advise you to work with the father to set up a liberal visitation schedule -- and stick to it!! Your question describes how the lack of regular contact is adversely affecting the child. You may also want to consider using a mediator to work out a written agreement (signed by both parents) on parenting time between you and the father. A written schedule combined with you keeping accurate notes on the fathers compliance with the schedule could be valuable if a divorce is eventually filed. Finally, my advise is always to act in the "best interest" of the child. If you see that the absence of contact with his father is causing your son to be depressed -- do everything you can to work with the father for your sons sake. I hope this information has helped you in this troubled time for you and your son. Good Luck!!
The information provided in this response to a question is not legal advise and is provided only for general information purposes. My response should not be taken as legal advise as no attorney / client representation exists. Additionally, the information given in this answer is specific to the State of Georgia only and should not be applied to any other state.