Except in cases where a child is at risk of imminent harm, there are no legal grounds for violating a child custody order by withholding visitation. When a couple with children divorces, the court issues a custody order that lists each parent’s custody and visitation rights and responsibilities. Unfortunately, parents sometimes refuse to allow the other parent to visit with the child in violation of the custody order.
Being prevented from seeing your child can be infuriating and frustrating. If your co-parent is wrongfully withholding visitation, learn about your rights and what you can do to enforce them.
Overview of Custody Orders
When parents decide to divorce, they must ensure that there is a plan for custody and care of their children. If the parents don’t want to battle out custody matters in court, they can agree to a custody plan on their own or create one with a mediator’s help. Any custody and visitation agreement that parents agree to outside of court must be submitted to the court for approval and entry as an order. Once the agreement is entered as an order, it is legally binding and enforceable by both parents. When parents can’t agree, a judge will decide custody based on what’s in the best interests of the child. Once the court issues a custody order, each parent must follow the visitation schedule contained in the order.
Is It Ever Okay to Withhold Visitation?
Basically no. There are a few, very minor exceptions – like the other party threatened to kill the minor child or something like that. It’s in a child’s best interests to receive regular and consistent visitation with each parent as ordered by a judge. When one parent decides to withhold visits, that parent has violated the court order.
When a parent withholds visitation, it’s usually for one of the following reasons:
• A desire to punish or retaliate against the other parent for past actions
• Out of anger and resentment over the divorce
• The other parent hasn’t been on time for custody exchanges
• The other parent has withheld visitation
• The child doesn’t want to visit the other parent
• The other parent hasn’t paid child or spousal support, or
• A belief that the other parent isn’t a good parent or can’t care for the child.
None of these reasons, though, is a lawful reason to withhold visitation.
A Narrow Exception: Risk of Imminent Harm to the Child
There is one exception to the general rule that a parent can’t withhold visitation: when a child would be placed in imminent (immediate) danger by visiting with the parent. For example, a parent might be justified in refusing to allow the child to get into a car with the other parent when the other parent arrives at the meeting point visibly intoxicated.
If you believe that your child is in imminent harm, call the police. In the example above, you’d be within your rights to call the police if the other parent reacts to your visitation refusal by forcibly taking your child, threatening you or your child, or drives away intoxicated (putting other people’s lives at risk). Once the threat of harm has passed, get a copy of the police report to later present to the judge as evidence of the other parent’s extreme and dangerous behavior.
Is a Suspicion of Abuse or Neglect Reason to Withhold Visitation?
Most instances of abuse or neglect don’t occur in front of witnesses. Unfortunately, unless your child is in imminent harm that you’re witnessing or aware of (in which case, call the police), you probably do not have legal grounds (reason) to withhold visitation. Even if you strongly suspect abuse or neglect, when there is no imminent harm, you must go through the proper legal procedures to prove that the other parent should not be allowed visitation with the child.
If you suspect that the other parent is subjecting your child to abuse or neglect, the best course of action is to document evidence of your concerns. As soon as you have evidence, you can petition the court to modify the custody order and enter a protective order (such as a temporary restraining order) that will prevent the other parent from seeing the child. Many parents placed in this tough situation choose to seek help from a child custody attorney or other qualified resource in order protect their child as quickly and effectively as possible.
What Should I Do When My Ex Isn’t Following the Custody Arrangement?
If the custodial parent withholds visitation occasionally, visitation time with the non-custodial parent can and should be made up. How you go about making up visitation time depends on your circumstances.
For example, when a mother who is the custodial parent has kept their child from the father, they can agree (without the court’s involvement) to give the father specific make-up visitation dates. However, if the mother is uncooperative, the father might need to take steps to enforce the child support order and ensure make-up visitation. Under no circumstances, though, should the father ever take self-help measures (such as taking the child without permission) or withhold child support.
Most of the time, when the other parent refuses to follow the visitation schedule and won’t schedule make-up time, you should contact a local attorney for help. Your attorney can help you decide the best way to enforce the custody order.
Custody disputes are often resolved in one of the two following ways:
Child custody mediation. Depending on the circumstances, you and the other parent might be able to resolve things through mediation. In child custody mediation, a trained, neutral professional (called a “mediator”) helps parents work out disagreements over custody without the involvement of the court. Note that if you (or your child) is a victim of ongoing domestic abuse, emotional abuse, or bullying perpetrated by the other parent, mediation might not be appropriate.
Court intervention. The parent being denied visits can file a contempt request (sometimes called an “Order to Show Cause”) or a request to modify custody with the court. If the judge finds the parent who is withholding visitation in contempt of court, the judge can fine the parent or even impose jail time. The judge can also modify the custody award to give the noncustodial parent more visitation rights.
If I Decide To Take Action, Is There Anything I Shouldn’t Do?
When fighting against a child custody order or visitation violation, there are certain things you should not do. Otherwise, the court won’t validate your request.
• Don’t violate the court order. No matter what your spouse has done, don’t stoop to that level. Always take the moral high road.
• Don’t forget to document everything. Take careful notes of everything that transpires. Jot down what your spouse did and how you reacted.
• Don’t berate your spouse in the presence of your children. When possible, the judge will encourage both parents to take an active role in the child’s life. Turning your child against your spouse won’t influence the judge’s decision – but it will make things more difficult for your child.
• Don’t take the child away from his or her support system. Now is not the best time to move, uprooting your child from doctors, school, and friends. This will definitely mark you as the underdog.
• Don’t hesitate to hire an attorney. Sure, family law and divorce lawyers are expensive. But trying to battle intense, complicated, frustrating legal proceedings in the midst of an emotional crisis is not wise. Plus, an attorney has previous experience handling these types of situations.
That expertise will really help your case.
After a divorce, a connection will remain between spouses. While that connection can sometimes be strained, it is possible to ensure both parties get what is legally theirs. Time with your child is too valuable to risk; fight for your visitation rights.
It is a key principle of family law that, in most situations, a child’s best interests are served by maintaining a good, close and loving relationship with both sets of parents following a divorce or separation. Simply put, children of separated parents have a right to be able to spend time with both parents. It is important for the children that parents agree and support these arrangements. This ultimate guide aims to help you understand the scope of a parenting plan, why they can be helpful, how best for you to work together and, if all else should fail, what other options and help are available.
Will the Police Enforce a Child Custody Order?
When your ex is not following the custody order, it might be tempting to call the police for help. In most situations, though, it’s best to leave the police out of your custody arguments unless your child’s immediate well-being and safety were at issue. Calling in the police can escalate a situation that the parents might otherwise have been able to work out on their own and divert law enforcement resources from true emergencies.
If you suspect that the other parent has taken your child and doesn’t intend to return (known as a parental kidnapping), though, contact the police. If the other parent takes your child across state lines or out of the country, local police will work alongside federal law enforcement, such as the FBI, to ensure the return of your child.
Along with involving law enforcement, you might be able to file an emergency motion with the court requesting immediate custody and a “pick-up order”—an order that gives the police the power to enforce the visitation order. If you find yourself in this position, strongly consider hiring an attorney—an attorney can help you navigate the court system in this emotional situation, and make sure that you get in front of a judge as soon as possible.
Ways to Deal with an Unreasonable Co-Parent
You are not the first person to find yourself attempting to raise strong, confident, loving children with someone you feel is crazy. Months or years of unmet expectations, broken promises, aggressive language, and an unwillingness to compromise has worn you down. You’ve probably tried everything you can think of to make it better, but you continue to find yourself hitting a brick wall. Worst of all, you know you have no choice but to keep trying since this difficult person is your partner in the most important job of your life.
I’ve noticed some patterns in high-conflict co-parenting. Here are common traps that co-parents get stuck in and some tools for getting through them.
1. The Blame Game
When playing the Blame Game, the other parent attributes everything bad on you. The child’s rash or poor grades, the hostile texts, possibly even the breakdown of the relationship. Your former partner is still triggered by your existence and likely is still holding onto anger from the relationship. They haven’t yet recognized that it takes two people to love — and two people to fight — and therefore they bear some responsibility for the current state of affairs.
Tools: Don’t argue. Arguing keeps you engaged in their drama, which is satisfying to the person stuck in the old drama, but unhealthy for you. Instead, ignore personal attacks. Let their accusations float past you. When they attack your parenting, reframe the blame as a problem and suggest solutions. For example, when your co-parent says, “She’s always tired when she comes back to my house. Why don’t you put her to bed at a decent time?!” Say, “It’s probably a good idea for us to have a set bedtime at both houses. What do you think about 8:00?” Then try not to argue when the other parent requests 7:30 instead.
2. The Quiet Treatment
Often, when conflicts become heated, parents refuse to communicate with one another. It seems easier and less painful to simply stop talking and texting than to continue to receive hostile messages or dead silence on the other side. You know this is not optimal co-parenting, but you reason that “parallel parenting” is better than constant fighting.
Tools: Discontinuing communication is highly contagious. Once one parent refuses to interact, the other generally follows that lead, causing a complete breakdown of communication. With this course of action, children often get caught in the middle and take on the adult roles of sharing information with the other parent. The result? Important details about the child’s wellbeing get lost in the void. The only solution to this is to remain communicative even when the other parent ghosts. The Quiet Treatment is equivalent to a child pouting. Eventually, the parent will calm down when you demonstrate courteous behavior and communication will resume. Also, recognize that if you want your co-parent to share information and planning, you have to respond respectfully and involve that parent’s ideas in your decision making.
3. The Push/Pull
One minute you’re the best Mom or Dad on the planet and the next, you’re a danger to your children. On Saturday, you’re invited over for ice cream after the gymnastic meet but by Wednesday, you’re not allowed to drop by their house to pick up a forgotten uniform for your child. You’re never sure what causes the rapid changes, which can be exhausting and confusing for you and destabilizing for your children.
Tools: It’s helpful to remind yourself that whatever is causing the yo-yo treatment, it is not you. You are simply experiencing your co-parent’s internal battle about how to interact with you in this new role. The best strategy is to lead by example. Be unequivocally kind and polite to your co-parent. Set boundaries that are comfortable for you and maintain them throughout the ups and downs and respect the boundaries they request. Don’t react to the changes in the weather, especially in front of the children. You don’t need to call out the disparities, just go with the flow until they learn how to behave as a co-parent.
4. The Human Shield
When a co-parent connects with a new partner and uses that partner as a surrogate parent or communicator, they have effectively placed him or her in the position of Human Shield. It becomes nearly impossible to make decisions with the original co-parent because everything has to be run by the new partner. This is unfair to everyone involved — the original parent loses out on parenting, the new partner rarely succeeds in the role, the children often resent the step-parent, and you must collaborate with someone who doesn’t know or love your child as their original parent does.
Tools: This requires a delicate, private conversation with your co-parent. It may be best to send your thoughts in an email (read at least twice before sending). Explain how this impacts you and your children and why you would like to change the setup. Ask why your co-parent has chosen to operate this way and be willing to learn from what you hear. There may be something that you can do to alter your behavior to make it easier for your former partner to work with you. Seek agreements about what matters the two original parents will decide and which can be handled by a step parent. Avoid making any unkind comments about the step-parent or threatening actions.
5. Withholding Or Punishing
The most common forms of withholding are refusing to allow a child time with their other parent or withholding important information about the child’s education or healthcare. Parents sometimes punish their co-parent by making it difficult for them to talk on the phone with the child or attend important events. Of course, it’s the child who is punished by these behaviors, but a Withholding or Punishing parent loses sight of this in their anger at you.
Tools: Assuming you have tried asking nicely and have explained how this is detrimental to the child, you have probably exhausted all obvious tools at your disposal. You may be tempted to file a Complaint or sue for full custody. Before you take expensive and drastic legal measures, try requesting mediation to discuss this with your co-parent or ask your lawyer if you might be well served with parenting coordination.
Free Custody Consultation
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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