Even if one parent does not have custody of their children, they are still entitled to access and visitation. This is because children do best when they can have healthy relationships with both parents. In many situations, the court allows one parent to have primary custody and orders access and visitation for the other.
Depending on the circumstance, the visitation may be outlined in a parenting plan or even supervised by a family member or social worker. The parents may agree on a possession order or have the court decide what is in their child’s best interest.
Violation of Possession Orders
If the custodial parent violates a possession order, the noncustodial parent can ask the court to enforce visitation. For an order to be enforceable, however, it must be “clear, specific and unambiguous as to the duties and responsibilities of the alleged violator.” For example, your visitation order must have a time, place, and date for set visits and exchanges. If your order does not have these details, you may need to modify or clarify it.
Additionally, you must show exactly how your ex violated the agreement, provide proof, and establish a pattern of violations. If you meet at a café every Tuesday at 5:30 p.m., for instance, go to the café and wait for your ex to arrive – even if they sent you a text message saying they could not make it. Make sure you are on time and buy a coffee at the café to document your compliance.
You may even want to keep a visitation journal to write down what happened. You might write something like:
“I texted my ex to confirm the exchange, then arrived at the café at 5:30 p.m. My ex did not arrive, and I could not contact them, so at 5:45 p.m., I bought a coffee and went home.”
If you go to the same café week after week, someone may even notice you and be able to serve as a witness. Don’t stop showing up for your child even if your ex fails to comply.
Relief and Contempt
When you ask the court to enforce your visitation order, make sure you know what you are asking for. Relief may include reimbursement for your expenses (those coffees might add up) and additional parenting time or make-up time, but it can also include fines, probation, or even jail time.
The judge can only grant you the relief you ask for, so make sure you know what kinds of relief are available to you and what you want to happen.
If the court holds your ex in contempt, they could face fines (civil contempt) or jail time (criminal contempt). Think twice before asking for criminal contempt, as sending your spouse to jail could be traumatizing for your children and create complications when it comes to custody.
Never ask for punishment to exceed 6 months, as this will give your ex the right to a trial by jury.
Before you ask the court to enforce your visitation order, you should always speak to an attorney.
Kay Polk, Attorney at Law has been handling cases like yours since 2000, and we are available to help at (713) 234-6260 or online. Your satisfaction is our priority, so call today to put creativity, resources, and focused experience on your side.