NCP rtefusing to follow court ordered pickup time

North Carolina Divorce Law Divorce and Separation Answers
1

I am the custodial parent and we have a court order on custody and visitation.
Decretal section on visitation clearly says that Ex must pick up children every other Friday at 6 pm at my home, it further states that if more than 1 hour late visit is forfeited with no makeup unless we both agree on any time change.

The Order allows options for either party to designate another competant person known to the parties who is licensed to drive, to pick up kids in case the parent cannot pick up.

It also is clear that any visitation in addition to what is decreed may be done if both parties agree and put in writing with each having a copy
BUT…it further states that ultimately I have sole discretion on whether or not to grant any additional visitaion.

Ex typically sends a family member to get the kids at 6 because she has changed work schedule fairly often .
Problem : Ex now refuses to send a family member ( says they dont like being in traffic at 6 pm) and insists that I allow her to pick kids up 2 1/2 hours later at 8:30 pm on Friday. I have accomodated this several times but told her it would be on a case by case basis, as she then drives the kids 2 hours ( they are 6 & 9) to where she lives .Kids are asleep when ex comes at 8:30, then have to wake, get in a car , drive 2 hours, arrive at 10:30 pm to be awakened only to go into the house to go back to sleep ?? Then ex goes to work Saturday .
I have offered for Ex to get kids Saturday morning at 8 am, or after she gets off work Saturday afternoon, but she insists on 8:30 pm only Fridays.

Ex is supposed to get kids this coming Tuesday night at 6 for thanksgiving , and now insists on coming at 8:30 on Tuesday ( 2 1/2 hours later than the Order).

I expressed that she needs to adjust work schedule, trade days off, or get a family member to get kids on time at 6 pm , as I am willing to accomodate if there is an emergency, but not to allow her to " De Facto" modify visitation everytime she chooses a new work schedule.

Ex is insisting that if I don’t cooperate she will file a motion to modify custody/visitation.She further insists she will show up at my home at 8:30 and that I better let her take the kids !! I am concerned she will start drama as well.

What is your opinion of how this is best handled, as I cannot see any change in circumstance that would allow her any modification, in fact without my written agreement to any pickup time changing from 6 pm ( remember she has a 1 hour leeway to be late) than if she does come at 8:30 she could be in contempt…is this correct ?

2

I agree with your position, I don’t see that any change in circumstances has occurred that would allow a motion to be granted. Since visitation is a privilege and not an obligation, she would not be in contempt of the order if she arrives late, but rather, would be forfeiting visitation pursuant to the Order.

3

She can’t cause drama if you’re not there. If you have told her she can’t be late, if she is she will forfeit her time with the kids then after 7pm leave. Take the kids to Chuck E Cheese or something so you’re not there to witness her craziness or drama.

4

Erin, Ex tried a motion to modify a few months ago as well and Judge agreed with me that no significant change had occured and said we should go to mediation. Ex had an attorney , I was pro se.I requested his ruling be made into an order, but Ex’s attorney never drew it up and now Exs attorney has filed leave to withdraw.
Question: If ex files ( yet another) a motion to modify, she will get to address Judge first. Then when it’s my turn:
do I simply request dismissal based on not meeting her burden of showing changed circumstance and stop talking.
Do I remind the Judge he ruled from the bench that mediation should occur , that her attorney never drew the order for him to sign and that just a few months ago he agreed no change had occured ?
Do I go into a complete defense of why nothing has changed ?

5

Yes, you would argue again that no change in circumstances has occurred and that the motion should be dismissed. No mediation should be required if there has been no change and the motion is dismissed.

6

Update: Ex (pro se) filed to modify custody/visitation. Her complaint is rambling and full of procedural flaws.
Bottom line is that she wants visitation schedule changed because she wants it to fit her current work schedule ( she has changed jobs & schedules several times in past 3 years).Ex has sent at least a dozen e mails about how she will get them wednesday morning at 8 am, since I said 8:30 pm tuesday was too late. Today ( after all the drama she created) she e mails that her mother will come at 6 tonight ( just as the Order states pickup shall occur). I responded that I am glad to see ex made arrangements just as is usual, to send her mother, and that I consider all the previous needless time change requests to be harrassment.
It is now a pattern that ex harrasses me about pickup changes and when I stand my ground , she always sends a relative .
Is it really to much to expect that 2 times per month ex can make the children a priority and pick up at 6 when they are awake for the 2 hour ride to her house …
Would it not be a plausable question to ask her if she expects that every time she changes jobs or work schedules ,does she expect to modify the Order each time ?

In my opinion ( and I am seeking yours Erin) since the Order already says if she can’t pick up herself, that she can designate someone, or we can “agree” on another time, hasn’t the order already accounted for things like job and schedule changes ?

Now that Ex filed a motion , it generated an Order to attend mediation and parenting classes ( I have had custody since 06), how do I handle a hostile mediation on her part, what she wants to mediate , I do not. I want her to stick to the Order as written and I always abide by the Order.??

7

I agree with you and suggest you file a motion to dismiss.

8

Would I title it :
Motion to dismiss plaintiff’s motion to modify custody /visitation" ?
Would I then list the reasons IE: Plaintiff fails to meet the two pronged burden of

  1. Showing that a substantial change in circumstance has occured since entry of the last order
  2. That even if a change has occured ( her schedule) she fails to show it affects the emotional or physical well being of the children
    Or do I list the reasons why, it fails to meet the burden.
    In other words, how much depth do I put on the Motion page ?
9

Yes, your title is appropriate, and the motion to dismiss should contain all of your allegations as to why her motion should be dismissed, ie that she has not shown that a change has occurred. A simple outline of your reasons for seeking dismissal will be sufficient.