How to Deal with an Ex-Spouse Withholding Child Visitation

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Gavel and Scales

Unfortunately, some divorced parents just can't seem to co-parent successfully. Often, custodial parents will (without any cause) prevent non-custodial parents from seeing their children for months and sometimes, years. Many non-custodial parents accept this behavior, but what they don't realize is that they do have options to remedy these types of situations. 

When Child Visitation Is Withheld Occasionally

If the custodial parent withholds visitation occasionally and does not follow the visitation schedule that is written in the agreement or order, visitation time can and should be made up. Specific make-up dates can be scheduled between the parents. Non-custodial parents should keep track of the dates and times of missed visitation in a calendar, written journal, or electronic document.

If the custodial parent will not schedule make-up dates, the non-custodial parent can take other measures. Other measures, however, should never include withholding child support or resorting to self-help.

Child support and visitation are not related. Your child (not the other parent) is legally entitled to child-support, and as the paying parent, you are obligated by law to support your child. If you stop paying child support, you are violating a court order and may be held in contempt of court by a judge who can impose serious penalties on you, such as monetary fines and jail time. Whatever you do, do not stop making your court-ordered child support payments on time.

Self-help is kidnapping; a non-custodial parent cannot simply “take” the children whenever they want, or for a period of time beyond the visitation schedule because the custodial parent will probably call the police and have the non-custodial parent arrested for kidnapping. This will not help the non-custodial parent’s case in court.

Instead, if the custodial parent is not following the schedule and will not schedule make-up time, you should contact a local attorney for help. If your attorney reaches out to the custodial parent (or the custodial parent’s attorney) with a letter stating that the interference with visitation is unacceptable, and you are willing to go to court to enforce your rights, it may be enough to encourage the custodial parent to comply with the visitation order and schedule your make-up time.

When Visitation is Consistently Withheld

If there is a visitation order that states when the non-custodial parent has access to the child, or even if the order allows for visitation as agreed between the parties, withholding child visitation is a violation of that order and the non-custodial parent can do several things.

In some states, the non-custodial parent can go to the police and have the visitation enforced. However, many police departments do not want to get involved in domestic disputes. Additionally, trying to enforce visitation by the police will create more hostility between the parents, and it doesn't make for happy memories for the child.

The non-custodial parent's next step is to file a petition (legal paperwork) in court to enforce visitation rights. Non-custodial parents may try to file these petitions on their own, but it is advisable to have an experienced family law attorney prepare it.

Some states take failure to comply with a visitation order so seriously that there could be a change of custody, meaning that if the custodial parent consistently refuses to allow the other parent any time with the children, a court may decide to transfer custody of the kids to the non-custodial parent.

Consult an Attorney

Custody is a very emotionally-charged issue, and the laws on child custody can be complicated.  So, if your child’s other parent has been interfering with visitation and shows no signs of complying, your best bet is to hire a family law attorney experienced in child custody issues to protect your rights and ensure that you get to spend time with your children.

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