Q: My ex-spouse lives in another state with our children – the state where we lived together and where we got divorced. Can I take her to court in New York to enforce my visitation?
A: No, you have to go back to the state in which she lives.
Q: My ex-spouse lives in another state with our children, but our divorce was in New York. Can I take her to court in New York to enforce my visitation?
A: Yes, but the court may decide that the state your ex-spouse lives in now has jurisdiction instead of New York. It depends on how long she has lived there, and where any other actions pertaining to your children has taken place.
Q: I have custody of my children and my ex-wife constantly tells me she can get custody at any time simply because she is the mother. Is this true?
A: Probably not. Document and record (if possible) what may appear to be blackmail and/or extortion. The courts don’t like that sort of conduct. The longer the children have been with you, the harder it will be for her to change custody. The issue is always the children’s best interests, which include continuing in the same school, maintaining the same friends, being in the same home with the same care giver, etc. If the children are well-behaved, if they are not failing in school, if they are not being neglected, etc., the children will probably remain in your custody. Only some exceptional circumstance would warrant a change.
Q: My ex-spouse constantly withholds visitation or schedules other activities for my children during my scheduled visitation time. What should I do?
A: Ask the court for a change of custody or at the very least a very specific visitation schedule if you don’t already have one. If you have a specific visitation schedule, call the police when visitation is refused. Get a police report. Document the failure to give visitation (bring a friend along for the pick-up). Send your ex a note describing the problem (“Dear Sally: The divorce judgment says I get Johnny on Mondays, but when I went to get him on Monday, you refused to give him to me. If this happens again, I will have no choice but to go to court. Please live up to your obligations under the judgment.”) If the problem cannot be worked out, application can be made to change custody. A constant denial of visitation may be a case for finding a parent unfit. In addition, ask the court to hold your ex-spouse in contempt of court for denying you your lawful right to visit with your child. If he/she doesn’t change their ways, the court might just change custody.
Q: My ex-spouse has custody and tries to dictate terms and activities for my visitation. Can he/she do that?
A: No, unless the court specifically said that he/she could. Otherwise it is interference with your visitation rights and you should go to court to stop it. On the other hand, if the spouse wants the child to play in Little League, which plays every Saturday, a court might not be as sympathetic to you (i.e., you bring the child to Little League on your weekends).
Q: What do I do if my ex-spouse withholds visitation?
A: Immediately call the police and have them issue a police report. Do not get into an argument. This could lead to your arrest. If you do not have an order of visitation, contact an attorney to obtain a court order for visitation. If you do have an order of visitation, contact your attorney to get court enforcement and a charge of contempt. Where visitation disputes can be expected to arise, I always seek very specific visitation orders so that there is no question about when you are entitled to visitation. Also, if you wait too long to do this, the court may think you don’t really care, so why should they?
Q: Can I withhold child support if my ex-spouse withholds visitation?
A: Big mistake!!! The courts view support and visitation as separate issues and the court will come down hard on you if you do. However, you can petition the court to allow you to withhold spousal support if visitation continues to be withheld.
Q: I think my ex-spouse is planning to move with our children to another state. What can I do?
A: First, consult your Separation Agreement/Stipulation of Settlement/Judgment of Divorce for any provisions concerning relocation. If no provision exists, ask your attorney to immediately go to court and ask that your ex-spouse be restrained from moving the children out of the county in which he/she now resides with the children, without first obtaining your written consent or permission from the court. It is easier to stop your ex-spouse from moving than it is to get your ex-spouse back after he/she moves. If you find out too late, and he/she has already moved, go immediately to court and petition to have your ex-spouse ordered to return the children to the county in which he/she had lived. It is always best to have the assistance of an attorney in this type of situation. The trend in the law in this area is to limit relocation of the child if it will seriously impact the visitation by the non-custodial parent.
