Remedy for Threatened Denial of Visitation


#1

Facts: Separated since January 2011. We have a Consent Order filed with the District Court in Iredell County. 2 small children, ages 5 and 8. Custody is split 50/50 in all aspects, with Order’s language being that we have agreed to “share the joint, legal and physical custoday of the minor children…” We alternate weeks beginning on Sundays. There is a provision for holiday equalization of time as well. There is no alimony and no child support.

Issue: My soon to be ex-wife (“STBE”) has recently threatened to not observe the holiday schedule as provided in the Order. As the children are small, and my extended family is all in Atlanta, you can see how this would be potentially traumatic for the children and frustrating from a planning perspective. STBE’s position is that the Order’s holiday schedule for this year (primarily Christmas), as it happens to fall in line with our normal weeks, is unfair to her. I acknowledge that because of a quirk in the calendar, I do have the children for a stretch of 13 days out of a 14 day period. To remedy this, I’ve offered to give her 3 or 4 days during this stretch so she won’t have to go more than our usual week without seeing them. Unfortunately, the STBE claims this is inconvenient for her, and her proposal doesnt work for me as I have relied on the Order in making holiday travel plans. So I’m planning on following the schedule as outlined in the Consent Order, but now STBE says she doesn’t care about the Order, it isn’t fair, does not agree with my interpretation, etc. and she will do what suits her as far as holiday time is concerned.

Question: Can I do anything prior to her actually violating the Order in an attempt to get her attention and hopefully have the court communicate to her the Order shouldn’t be ignored? Is there a “ripeness” issue in family law similar to that in constitutional law? Or can I get some kind of declaratory judgment in advance that clarifies the holiday timeline?

If yes to the above, do I do this by filing a Show Cause Order and asking her to appear to explain why she doesn’t plan on following the Order?

Thanks in advance.


#2

Crystal?


#3

If your ex is not abiding by a court order, then you can file a Motion to Show Cause and the court will enforce the Order. However, you cannot on these facts be heard for breach. The breach hasn’t occured yet. All you can do is threaten her with legal action if she doesn’t abide by the Order and allow you the visitation that was outlined for Christmas.