Complaint for preventing me from seeing my child

A separation or divorce is a very hard time emotionally. So much so that, in some cases, extreme decisions are taken. This is the case, for example, of not letting the other parent see the children without a sentence or, failing that, not complying with the visiting arrangements.  

Unfortunately, this situation is more frequent than we would like. Therefore, here we want to talk about the legal consequences of the offence of not handing over the children. If this is your case, the best thing to do is to be properly advised by a family lawyer.

Parents have a right and a duty to relate to their children.

This is typified in Article 160 of the Civil Code. In particular, it states that minor children have the right to have relations even with parents who do not exercise parental authority. It also states that they cannot be prevented from having personal relations with grandparents, siblings or other relatives.

Therefore, unless there is a court order preventing it for the purpose of safeguarding the interests of the child (e.g. in a case of domestic violence), it is not possible to prevent a child from seeing one of his or her parents.

The visiting arrangements

From the above-mentioned right and duty of the parent-child relationship arises the need to establish a visiting regime in the event of separation or divorce. This also regulates the periods of stay with the non-custodial parent (in the case of a single-parent custody regime) and communication with him or her.

The complaint for preventing me from seeing my child

The visiting arrangements are approved by a court judgement and non-compliance can have criminal consequences. These are the offences most commonly involved:

• Crime of coercion (Article 172 of the Criminal Code). Since, in some cases, it is assumed that non-compliance with the visitation regime is done with the purpose of restricting, infringing or subduing the freedom of the other parent (for example, to increase the amount of the child support or to keep the child at another time that does not correspond to him/her).
• Crime of child abduction (Article 225.bis of the Criminal Code). When the child is repeatedly not handed over to the other parent. This can lead to up to 4 years' imprisonment and 10 years' disqualification from exercising parental authority.

However, no matter how serious the grounds on which a parent may be sued, it is most likely that the matter will result in a modification of the terms and conditions of the visiting arrangements.

But what are the most common arguments when a mother does not allow the father to see her child or vice versa? They are as follows:

• Failure to pay the amount of child maintenance.
• Express wish not to have relations with the new partner of the other parent.
• Incompatibility of schedules due to work.
• The child himself/herself does not want to see the other parent, which is usually the result of the process of parental alienation.
• Impossibility of combining extracurricular, school or leisure activities with the visiting arrangements.

My ex-husband won't let me see my child and I don't have a judgement.

It occurs in married couples who have separated 'de facto', but without legal recognition. It also occurs in couples who have had children without getting married. Evidently, in the absence of a court judgment ratifying the agreement, there is no visitation regime applicable.

In this case, the parent affected by the situation has two options. The first is to file an application for divorce or separation (if married) or for custody (if unmarried). In it, he or she must request the application of a series of provisional measures, including a timetable for visits and communication with the children. It should not be forgotten that it would also be possible to file a complaint for not allowing you to speak to your child.

My ex-husband won't let me see my son and I have a judgment.

All court judgments must be complied with in full. So, every time the custodial parent does not comply with the visiting arrangements, the non-custodial parent must file a complaint with the police. It is advisable to do this by carrying the judgment as often as necessary.

The next step is to file a lawsuit for non-compliance with the court judgment and request its enforcement. Here it will be a judge who will oblige the other parent to do what has been established and who can even modify this regime. He or she may even be able to withdraw custody.

In short, every parent has the right to know where my child is, to see him or her and to talk to him or her. If the other parent prevents this, it can be a very serious offence.