Change in visitation schedule


#1

Our consent order says we can deviate from the visitation schedule in the order if we both agree to do so, but if we don’t agree, then the order schedule controls. Under the order schedule my ex husband was supposed to pick up the children at my house at 5pm on Friday and return them at 5 pm Sunday. He informed me a week ahead that instead of 5 pm on Friday, he would pick them up at at 12 noon on Saturday ( no reason given as to why he couldn’t get them Friday but I believe he was attending a concert). I told him that change to the schedule didn’t work for me due to Saturday plans but I would agree to him getting them on Sunday through Tuesday instead, so he would have 2 nights. He didn’t respond (we email) to say he disagreed with that suggestion. He never mentioned Saturday pickup the week before, to me or the children when he took them to dinner. So I assumed we were in agreement for the change to Sunday through Tuesday visitation schedule.

Ex did not pick them up on Friday at 5pm (as order dictates) so based on that (and all the above) again I thought we had agreed to the change to Sunday through Tuesday visitation. Well, he texted me Saturday morning and said he was on his way to get the kids. I told him we were out and had made plans for Saturday based on fact I thought we had agreed to Sun- Tuesday modification, and told him Saturday pickup didn’t work for me. I told him if he didn’t agree to the Sunday - Tuesday change, he should have let me know and in that case the order controls and he was supposed to get them at 5m on Friday.

If he was supposed to get them at 5 on Friday under the order, but didn’t, am I obligated to go by changes he unilaterally makes to the weekend schedule? Or did he forego his weekend visitation by failing to pick them up at 5pm on Friday as the order says? Can he do that (violate order terms) but then tell me I have to hand them over Saturday at the specific time he dictates? The order says if we can’t agree on a scheduling change, the order controls.i need to know because he has done things like this before, but puts blame on me. He violated the order terms, but then says he’s taking me to court for contempt if I don’t hand them over Saturday on his terms.

What exactly is my duty if he doesn’t pick up at 5 pm on Friday? Do I have to wait around for him all weekend so he can pick up Saturday or Sunday if he says that’s what he’s doing and says I have to go along with his plans because it’s his weekend? Or can I assume he’s given up that weekend of visitation for failure to pick up at 5 on Friday and go on my way? It seems so unfair if he can have total control of the schedule by that method.


#2

The father did not forfeit his weekend of visitation by not picking the children up on Friday at 5pm unless your court order says this constitutes a forfeiture of visitation time. So you cannot assume he’s given up his weekend. Your responsibility is to have the children available for visitation with their father at the time the order states (as opposed to being out of town or planning a trip during the father’s scheduled visitation time). If he does not pick the children up on time per the order, he could pick them up later on (i.e. Saturday), but there would not be an automatic extension of the visitation time to include 2 nights unless your order says this is to happen - his visitation period would still end on Sunday at 5pm unless you were to agree otherwise.

Technically he is in contempt by not picking up the children according to the schedule in the court order.

Check your child support order about babysitting/childcare expenses. Your order might be written such that the father is responsible for childcare during his visitation period as stated in the custody order.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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