Divorce and legal separation can get sticky; disagreements, fights, and deep rooted resentment during the proceeding can make your relationship with your former spouse extremely uncomfortable, to say the very least. This in combination with a child custody agreement that is difficult for one spouse can lead to severe custody problems, such as visitation breaches.
Visitation breaches are instances in which one parent keeps their child beyond the limit of what the agreed to custody schedule permits. This can happen at extremely inconvenient times, such as before or during vacations and family holidays, leading to major inconveniences for the other spouse. Your former spouse or partner is legally required to follow all child custody agreements signed by a judge, and a breach is grounds for punishment. Visitation breaches are not rare, and if you have a former spouse who you think is highly likely to breach your visitation schedule, you should know how to respond ahead of time.
Build a Case
Record the infractions. When is your former partner breaching visitation? How often, what reasons do they give you, and what are the consequences for you? Does this affect your child? Write everything down and be prepared to fully explain before a court.
Then you may want to consult with your attorney on the best course of action; this will help you avoid wasting time on actions that will be unlikely to result in what you want. Describe to them your situation; ask if they think it probable that the courts will help, or if the lesser severity of the issue would be unlikely to solicit response from the court.
Parents with sole physical custody of the child are just as responsible for the consequences of their visitation breaches of a court approved schedule as non-custodial parents. Though there are different guaranteed consequences for visitation breaches across the states, it is likely the offending spouse will face fines, restricted access to their children, or even criminal charges for the breach.
Possible Responses
Fortunately, there are many ways a parent may go about holding their former partner responsible for breach of visitation. However, not all are universally applicable. It is important to choose the next course of action only to stop the infractions from happening. If you are using this as a means to hurt your former partner, chances are the courts will pick up on it, and the proceeding could immediately backfire on you, or the court may be less likely to give you favorable arrangements in the future.
Filing a Motion to Comply
In the event that one parent disobeys the custody order, the other can and should file a motion for that other parent to comply with the court’s order. This document is a formal petition that the courts request the other parent to comply with the agreed to visitation/custody schedule. Should the court order be met with disobedience, the court may find that individual in contempt of court, and impose a sanction, fees, order the offending parent to remedy the situation, require the offending parent to post a bond as motivation to follow the visitation schedule, or perscribe jail time for that person. Courts have also been known to award the victimized parent more visitation time to make up for what was lost, or could even change custody rights of the parent altogether. Sometimes, the victimized parent will even file for monetary damages.
Before any decisions are made, however, there is an open hearing with the judge, in which the other parent explains his or her actions before the court. If the parent had reasonable cause for denying the other parent custodial rights, such as if the other parent was in state unfit to care for the child, the court may throw out the motion to comply.
In rare cases, the court may reasses the child support the victimized parent was paying at the time of the other parent’s visitation breach, and permit that parent to reduce the child support paid, or end child support altogether. This is rare because usually, a reduced amount of child support ultimately ends up hurting the child.
Habeas Corpus
Obtaining a writ of habeas corpus in a situation of breach of visitation basically requires that the offending parent to bring your child to the court so that whatever custody matters are at issue can be resolved. It further guarantees you the right to the return of your child.
When you file for any of the above methods in attempt to motivate your former spouse to comply with your agreed to visitation schedule, know that they must have fair warning of any legal proceeding against them, and they will have a response hearing during which they will explain themselves. You can request any of the above actions be taken, but the court will decide based on your situation and what response fits the best interest of the child. You can also petition the judge to order your spouse undergo testing for illegal substances.
Extreme or Emergency Responses
As a last resort, if a parent consistently withholds visitation from you, regardless of the courts actions to prevent this, you may ask the police to enforce your visitation schedule. However, this extreme step should only be reserved for extreme situations. Police involvement could create further issue for you and your former partner, but it may negatively affect your child, or even could inflict minor trauma upon them.
If Your Child Has Been Taken out of State
Should your child be taken out of state in breach of custody, by way of the Uniform Child-Custody Jurisdiction and Enforcement Act, you may ask authorities to issue an emergency order that your child be brought back to their home state immediately.
No matter the severity of your situation, it is important that you always remember you can and may need to solicit help from an experienced attorney. They will effectively guide you through the proceeding so that you, and your child come out on top.
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