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.
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.
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:
None of these reasons, though, is a lawful 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.
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:
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.