Can the non-custodial parent obtain custody of children if custodial parent is in jail for contempt of court? 9 Answers as of April 27, 2016

My ex-husband was awarded full custody of our two children by withholding court documents that were mailed to our once shared residence. I, the mother was homeless and failed to update the courts with my situation. (Ex-husband stayed in the home, I was forced out and left with nothing) I was unaware of the court hearings date, and ex-husband was awarded full custody with me only getting one Saturday a week with temporarily no overnights. He has since, denied my court ordered visitation day and is in contempt I believe. I have proof in emails that he is withholding visitation because of made up allegations that he can not prove because they are untrue. I have no criminal, abuse, or drug history. I would like shared custody of the children. If I file a motion for contempt against him, could I gain custody or partial custody at the very least? I am not homeless at the moment. I am in a stable, healthy environment for my children. If he is incarcerated, where will my children go? I do not want them placed in CPS. I want my kids. He initially awarded custody of three children. One of them being only my biological son, who two months after the divorce, committed suicide and was found by his two young siblings. No adult in sight. Terrible situation. I have since given birth to a little girl (not his), and she is dependent on me. He recently tried having me placed in contempt for failure to pay him child support. It was thrown out because I am unemployed, and modification has since taken place (due to the loss of my son), and the amount has lowered. I think this angered him, and when I told him that he was violating a court order by withholding court ordered visitation, he referred to me not paying child support. I need guidance. Please direct me. Thank you.

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Law Office of Barton R. Resnicoff | Barton R. Resnicoff
There are so many things in what you relate, but there are a number of keys. A fit residential parent has an affirmative obligation to encourage a relationship with the other parent; failure to do so can be considered proof of unfitness. A request for contempt, if justified, in denying parenting time is, because of this obligation a form of proof of that position. So while you may get parenting time if he is incarcerated because of the contempt, you may get custody because the intent of his actions is to interfere with your relationship with the children. I also get the feeling that there is some form of domestic violence here as he attempts to control you and your life. If I represented you, I would petition for a change in custody and a violation petition for his interference with your parenting time, along with issues of false claims against you.
Answer Applies to: New York
Replied: 4/27/2016
Richard B. Jacobson & Associates, LLC | Richard B. Jacobson
First things first. I am deeply sorry to hear of your son's suicide. I hope you never have such grief again. You definitely need a skilled family law attorney. If you can prove that you did not receive notice of motions or hearings, for example, your lawyer could move to reopen matters and very possibly include a contempt charge among other motions to straighten things out. But this is not something that a lay person can do for herself. In every major city there are law firms, public and private, which provide legal services at reduced prices for people who cannot afford the usual legal fees. There are also a good many lawyers who believe it or not have a heart, and will offer some kind of payment plan.
Answer Applies to: Wisconsin
Replied: 4/27/2016
Law Offices of Helene Ellenbogen, P.S.H | Helene Ellenbogen
You don't say how old the children are or why you got so little time. If he withheld the children, you can make a motion for contempt, assuming this happened recently. You can also ask for a modification of the parenting plan if he is going to jail for anything more than a few days. I suggest you get a lawyer, because this sounds like a complete mess.
Answer Applies to: Washington
Replied: 4/26/2016
GordenLaw, LLC
GordenLaw, LLC | Vanessa J. Gorden
You cannot modify through contempt proceedings. Based on the limited information given, you may want to file both - contempt for his failure to follow the order in place right now, and modification based on a material and substantial change in circumstances and the children's best interests, to obtain more parenting time with the children. You need to at least visit with a lawyer confidentially about the facts of your situation and your options.
Answer Applies to: Nebraska
Replied: 4/26/2016
The Law Offices of Mandy J. McKellar
The Law Offices of Mandy J. McKellar | Mandy J. McKellar
You need to get an attorney. How is holding him in contempt going to get you custody? Think of it that way. You want custodial time that is denied, you want more time, and you ask for contempt? It will not get you very far, I would suggest that you file a motion to compel visitation as ordered and an expansion of your visitation time. As long as you present that you have no issues with substances, domestic violence, or repetitive filings, then you should be able to expand time. Changing custody is another animal. If you are wanting to be successful with this you should save up for an attorney that can assist in these tasks. I would also suggest that you set up a consultation or 2 with competent counsel.
Answer Applies to: Nevada
Replied: 4/26/2016
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    You should meet with an experienced family law attorney to explore your options. Proving A contempt that results in jail time is extremely complicated and rarely used by the court except in extreme circumstances.
    Answer Applies to: California
    Replied: 4/26/2016
    Law Office of Martin A. Kahan | Martin A. Kahan
    You can file for a modification based on the change in circumstances. Support does not have a bearing on custody.
    Answer Applies to: California
    Replied: 4/26/2016
    David A. Browde, P.C.
    David A. Browde, P.C. | David Browde
    You can try. Whether you will be successful or not can't be determined from the information posted.
    Answer Applies to: New York
    Replied: 4/26/2016
    Diane l. Berger | Diane L. Berger
    You don't say if he has withheld parenting time only once. If so, I doubt a court would find him in contempt. Even if he has withheld time several times, it is unlikely a court, at least here in Douglas County, would throw him in jail. It sounds to me like what you need is a modification action based on the fact there is a change in circumstances, i.e., you are no long homeless, in a stable environment, etc.
    Answer Applies to: Nebraska
    Replied: 4/26/2016
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