The Mother Gives up Custody and Now Wants it Back

father's rights lawyerIn a recent case before the Third Department, Appellate Division, a mother, named Barnes, brought an appeal from an order of the Family Court which gave the father, King, primary residential custody of their child. Initially, Barnes had physical custody of the child. However, she had housing problems and she asked the father, King, to take the child.

Eventually, the mother found appropriate housing. However, the father was not willing to return custody to the mother.

 Mother Petitions Family Court for Custody

The mother brought an application to the Family Court requesting that custody of the parties’ child be returned to her. At the same time, she brought a petition claiming the father had violated her visitation rights. The matter was set for a hearing in the Family Court. The Family Court granted the couple joint custody, however, physical custody was given to the father. In its decision, the court stated, “although the father had violated the mother’s visitation rights it would not impose sanctions.”

On appeal, the Third Department did take note that no evidence was presented at the time of the hearing with regard to the home environment in the father’s home. The court also took into consideration the fact that the father did not foster a relationship between the mother and the child. While the mother had custody, the mother did cooperate with the father in regard to his visitation rights. The court’s decision stated that the mother had produced documentation that she had found suitable housing. The Appellate Court, upon reversing the custody order, sent to the matter back to the Family Court to establish a visitation schedule for the father.


If you are a father and get temporary custody, you should cooperate with the mother on visitation. A parent who refuses to cooperate concerning the other parent’s visitation can be sanctioned by the court.father's rights advocate for visitation and custody

About Elliot S. Schlissel

Elliot S. Schlissel, Esq. has spent more that 45 years representing individuals in matrimonial and family law cases.