If my husband and I are not legally separated but are living apart, can he keep our son from visiting me overnight?

My husband and I stay in houses and plan on divorcing (no papers yet). We have a 13 year-old son together, but he stays with my husband. Now he doesn’t want my son to stay overnight in my house because I have a boyfriend who just got release from prison. He thinks that my boyfriend is a bad influence. I want to know if what he doing is legal or not because his girlfriend stays at his place several nights a week.

Asked on March 28, 2011 under Family Law, Indiana

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Technically your husband can not keep your son from you any more than you can keep your son from him.  He can, however, petition the court separately or apart from your divorce proceedings (in other words before the actual divorce proceedings have begun) for custody and/or a visitation schedule regarding your son and ask for limitations on your rights to overnight visits.  What he has to prove is that his requests is in "the best interest" of your son.  I would strongly suggest that you seek legal consultation and that you attempt to come t an amicable solution, like that neither of you have overnight visitors when your son is with you, or something you can both live with.  Otherwise the court will rule on the issue for you.  Good luck.


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