There are certain concepts and phrases we hear a lot in this practice. A common one is that the other parent/spouse/party won’t “let” someone do something, which initiates a family law issue. That could be seeing their children, using marital money, or any other number of issues. The most common complaints usually fall into two (2) categories: children and finances. Such examples are “they won’t let me see our kids”, “they won’t let me take our kids”, “they won’t let me use our bank accounts”, “I can’t access our money or bills, I have to ask first.” When does someone actually need permission?
Permission actually legally needed is much more limited than perhaps people think. For example, when it comes to joint bank accounts, neither party needs permission of the other to use the funds. Although the pattern and practice between the parties could be that only one handles the finances and the expectation is that the other party has to ask the first before touching the account, as far as the bank is concerned, either party named on the account can access the funds anytime and any way they want. That is because although it is a joint account held in multiple names, it nonetheless entitles either party to use it as though it belonged solely to them. Any agreement/expectation between the parties as to how to use the joint account between them is not the bank’s responsibility. This is exactly why we get the upset phone call that one party emptied the joint bank account and the bank did not stop them.
NOTE: This is not to suggest that anyone should go empty any bank accounts just because they can. While the bank may not stop this from happening, there can be repercussions.
Similarly, when it comes to children, there are lots of complaints that one parent controls the other parent’s access to the children which can include, for example, not allowing any parenting time that isn’t supervised by the first parent, allowing parenting time but not allowing overnights, not allowing a parent to drive with the children, not allowing a party access to records (school, medical, etc.). Unless or until a custody/parenting time agreement is entered by the parties or order is entered by the Court, parents’ rights and responsibilities are equal. Neither parent has greater legal rights or responsibilities than the other party and neither can legally unilaterally dictate the terms of custody or parenting time, including the terms of contact with children. This becomes an often litigated family law issue.
That is not to say that there may not be a very good reason for why one parent wants those restrictions, but it does mean that one parent cannot just engage in self- help and should be making the appropriate application to the Court rather than just unilaterally imposing restrictions on the other parent to solve their family law issue. Conversely, just because there are no legal restrictions on a parent’s access or parenting time does not mean that they should go ahead and engage in actions that could put the children at risk. Again, while parties are free to take any action they want, there are consequences, legal, financial and otherwise. Bottom line, there is a big difference between the parties’ expectations of permission/consent versus what the law may require in terms of the parties’ permission/consent. The two should not be confused, but the absence of the later does not mean it is wise to go ahead and ignore the former. Acting with transparency and in good faith is always a better way to go than doubling down and digging heels in; not only does treating the other party fairly and reasonably play well to the Court, but very likely it will garner better results with the other person like the old adage, get more bees with honey than vinegar. At the same time, be very careful of what you are “letting” yourself in long-term, think of the consequences down the road.
Julie Burick, Esq. is a partner and shareholder at AMBF and focuses her practice on all aspects of divorce and family law.