If you aren't living with your child or children full time—whether you're divorced from the other parent, separated, or never married—you no doubt want to spend time with your kids on a regular basis. And if your co-parent is preventing that from happening, you should know your rights and what you can do to enforce them.
As a general principle, courts have long recognized that all parents have a fundamental right to the companionship and care of their children—even to a "meaningful" parent-child relationship—as long as it doesn't harm the children. (For example, see Santosky v. Kramer, 455 U.S. 745 (U.S. Sup. Ct. 1982) and Spano v. Bruce, 816 So.2d 714 (Fla. Ct. App. 2002).)
And it's not just a question of parents' rights. Courts and lawmakers recognize that it's usually best for children to have ongoing relationships with both of their parents. In fact, some states have adopted explicit policies encouraging frequent and continuing contact between children and their parents.
When you don't live with your child, all of this means you generally have a right to visitation unless you pose some danger to your child's physical, mental, emotional, or even moral well-being. But if the other parent is keeping your child from you, you won't be able to enforce those visitation rights without a court order.
The procedures for getting a visitation or parenting order are different depending on whether you were married to your child's other parent.
Typically, judges issue orders regarding physical and legal child custody as a part of their parents' divorce or legal separation. Those orders will include details such as which parent will have the children most of the time (usually called the primary custodial or residential parent) and when the noncustodial parent will see the kids (usually called visitation or parenting time). Judges may also issue temporary custody orders that will apply while a divorce is working its way through the legal system.
Rather than have a judge make the custody decisions, you and the other parent may agree on how you'll handle co-parenting during and after divorce. But unless a judge approves your settlement agreement and makes it part of a court order, the only way to enforce the agreement—say, when the other parent keeps a child from seeing you at agreed-on visitation times—would be to sue for breach of contract.
You may also file a request for a custody order outside of the divorce context in order to establish your legal visitation rights. For instance, you may seek visitation when you're an unmarried parent.
The details of the legal procedure vary from state to state. Generally, however, you'll first need to establish your legal parenthood (or paternity) unless you were married to the biological mother when the child was conceived or born.
Depending on where you live, however, establishing or acknowledging paternity might not be enough to give you the right to seek parenting time. For instance, an unmarried father in Georgia must file a "legitimation" petition to request court orders declaring that his child is legitimate and granting him parenting time. Until a judge rules that a child "born out of wedlock" is legitimate (or the parents get married), the father doesn't have any rights to custody or visitation. (Ga. Code §§ 19-7-22, 19-7-25 (2022).)
What if the other parent argues that you shouldn't have visitation because it would be harmful to your child? First of all, you should know that judges start out with the presumption that it's in children's best interests to have continuing relationships with their parents. So a judge usually won't deny or suspend your visitation rights unless you've engaged in egregious behavior that endangers your child physically or emotionally.
Also, even when it wouldn't be good for your child to spend time alone with you, judges will often allow you to see your child with visitation conditions, such as drug-test requirements or supervised visitation. You might then be able to have the conditions removed after a period of time if you can show that you've been meeting certain goals or standards of behavior. But you could also lose any visitation rights if you violate the conditions.
Unless custodial parents have succeeded in getting a court order denying visitation, they may not legally withhold a child from the other parent unless it would place the child in immediate danger of serious harm. For example, if you show up visibly intoxicated to pick up your child for visitation, the other parent might be justified in refusing to let the child get in the car with you. And of course, the other parent would have even more justification if you became violent.
Beyond that type of emergency situation, however, the other parent may not unilaterally keep you away from your child without seeking a court order (more on that below).
Even if you've been accused of child abuse or other domestic violence, the other parent must go through proper legal procedures to prove that you shouldn't be allowed to see your child—for instance, by seeking an emergency protective order and then filing a formal request to modify the existing custody orders.
There are many reasons your ex might feel justified in keeping you away from your child, including:
None of these are valid reasons for unilaterally withholding visitation. Even if the custodial parent believes you aren't taking proper care of your child during your parenting time, or that you're trying to rupture their parent-child relationship, the solution is not to deny you access to the child. Instead, the custodial parent must seek a custody modification and provide evidence that spending time with you is harmful for the child. If that evidence is convincing enough, the judge might suspend or end your visitation rights or parenting time.
When your child is the one refusing visitation, the custodial parent has a legal duty to do everything within reason to get the child to cooperate. But if none of those efforts work—particularly when your child is a teenager—it might be difficult to enforce the visitation order.
There are various steps you may take when your child's other parent is denying your parenting time or visitation. There also are some things you should not do.
If your co-parent has only occasionally kept you from seeing your child at the appointed times, you should be able to arrange makeup parenting time. Your custody order and circumstances will determine how to do that.
For instance, your parenting plan might spell out exactly how to make up the time when a noncustodial parent isn't able to see the child (for whatever reason) on a scheduled day. So the first thing you should do is check the details in your custody order or parenting plan.
Even if your order doesn't address makeup parenting time, you can always try to agree with your co-parent on how to arrange other times you can spend with your child. Without an agreement, you might have to take steps to enforce the custody order (more on that below).
Depending on the circumstances, you and the other parent might be able to resolve your dispute about parenting time through mediation. In child custody mediation, a trained, neutral professional helps parents work out their disagreements.
You should know that in many states, the judge may order you to participate in custody mediation whenever you file a court proceeding that involves a dispute over that issue, such as a request to modify custody (as discussed below). When that happens, you'll usually have access to free or low-cost mediation services through the court.
If you haven't been able to resolve the problem of being denied parenting time with your child, you may seek help from the court. Depending on the state and county where your existing custody order was issued, you might have different options for enforcing the order.
You may request enforcement of custody orders through a contempt proceedings—often by filing a motion for an Order to Show Cause. When judges find that parents willfully violated court orders by withholding visitation, they typically order the parents to start obeying or take other specific action, such as arranging for compensatory or makeup parenting time. Parents who continue to disobey court orders could face fines, jail time, or a change in custody to give the other parent more time with the child.
Some states provide easy-to-use forms for requesting enforcement of custody orders. In Minnesota, for instance, you may file a request for parenting time assistance, including makeup parenting time when you've been denied time with your child. You can make a similar request in Michigan by filing a complaint with the Friend of the Court office.
You may also request a change in custody by arguing that the other parent's denial of your parenting time is a significant change in circumstances that warrants a modification. You'll need to show that your proposed change would be in the child's best interests.
Typically, judges will only transfer custody to the other parent in extreme cases of interference with visitation. But when judges are deciding what parenting arrangement would be in a child's best interests, they generally must consider how much each parent is able and willing to encourage the child's continuing relationship with the other parent. So you could argue that the other parent's repeated interference with visitation is at least one factor weighing toward giving you more parenting time.
When your ex isn't allowing you to see your child at the scheduled time, it might be tempting to call the police for help. In fact, several states have laws that make it a crime to interfere with custodial rights (or even court-ordered "access" to a child), although they generally require that the interference is repeated or part of an ongoing pattern of behavior. (For example, see Ariz. Rev. Stat. § 13-1305 (2022).)
However, police generally won't get involved with custody disputes unless a judge has issued a "pickup order" that gives them authority to enforce a custody order. And it's usually best to leave law enforcement out of your custody arguments unless your child's immediate well-being and safety are at risk. Calling in the police can escalate a situation that you and the other parent might otherwise have been able to work out on you own.
But you should contact the police immediately if you believe that the other parent has taken your child out of the area and doesn't intend to return. Parental kidnapping is a crime. And if the other parent takes your child across state lines in violation of your custody rights, local police will work alongside federal law enforcement to ensure the return of your child.
Just as a custodial parent is not allowed to withhold court-ordered parenting time because the noncustodial parent is behind with child support payments, a noncustodial parent may not legally stop paying child support because the custodial parent has withheld visitation.
It probably seems unfair to continue paying child support when you haven't been able to see your child. But it might help to remember that the support is for the child—not the other parent. If you simply stop paying, the unpaid support obligation (or "arrearages") will add up, and the other parent or the state will probably take child support enforcement measures against you.
If your co-parent is blocking your parenting time or visitation, one thing you should never do is take self-help measures, like keeping or taking your child without the other parent's permission. That could get you in serious legal trouble, including criminal charges for custodial interference or parental kidnapping.
You might be able to resolve a dispute about parenting time without hiring a lawyer if you and the other parent can work out an agreement (either on your own or in mediation) or if the courts in your state provide simplified procedures to enforce these disputes. To find out about any help that might be available through the court system, you can check with your local court clerk or search online for courts' self-help resources in your state.
However, you will most likely need a lawyer's help if your co-parent won't stop withholding visitation and you don't have access to a simple enforcement procedure designed for parents without legal representation. This is especially true if you need to bring contempt proceedings, seek a custody modification, or deal with a custodial parent who has taken the child out of the area in violation of your custody order. These types of proceedings involve complex legal issues, and you could be at risk of losing access to your child without the expert advice and assistance of an experienced family lawyer.