Visitation Problems

[system]

slb02,

I am assuming that the custody arrangement your husband and his ex-wife are operating under is contained in a separation agreement. Unfortunately, some folks use kids to settle the score with their ex-spouse. The likely most effective remedy is a custody lawsuit. If the separation agreement is “unincorporated” (not made part of the divorce decree), then you can expect that a judge will examine factors related to the “best interest of the child,” and will award custody and set visitation. If the agreement is “incorporated,” and thus is part of a court order, then you will need to establish that there has been a “substantial change of circumstances” in order for the judge to re-examine the issue of custody. The move by your husband’s ex-wife combined with the frustrated visitations likely would be enough to carry that burden.

If a judge does issue a custody ruling, or if your husband and his ex-wife settle the case before trial in a consent order, you will want the Order to specify exactly what the visitation schedule is and to specify that law enforcement may be utilized to help him enforce the Order. The key to these situations is enforcement. As you well know, some custodial parents just do not “get it” that one of their main responsibilities is to facilitate and encourage a positive relationship with the other parent. Rather than argue with them about why they should be responsible, spend your time and energy taking steps to get an enforceable Order from a judge. Once you get an enforceable Order, if she withholds visitation again, you can ask the local sheriff’s department or other law enforcement agency to help you enforce the Order. Another advantage to getting a court order is that in addition to having the ability to ask law enforcement to help you is that you can also invoke the court’s contempt powers, and take her to court if she violates the Order. One of the judge’s powers in enforcing the Order is to incarcerate her until she “gets it.” And if she keeps doing it, a judge has the authority to reverse the custody order and grant custody to your husband.

I would not recommend “going it alone” in any custody proceeding. If you are serious about solving the problem, consult an attorney, give him or her all the facts, and ask for advice.

David L. McGuire
Attorney
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCdivorce.com
(919)787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

[SLB02]

For the past year, my husband’s ex-wife has not been adhering to my stepson’s visitation schedule.

My stepson is age 11. His mother and father divorced 4 years ago.
His mother has full custody; we are to get him every other weekend, one weeknight per week, and 2 weeks each summer (in addition to every other holiday, etc.).

The mother and my stepson moved 3 years ago that is 3 hours away. Hence, the visits are even more so limited. Since last spring, she has not been ahering to the weekend or summer visitation schedule. She will constantly make excuses (mainly due to her own personal schedule), and will “forbid” that he come for any length of time during the summer as she claims that he will get homesick (he never has, and was with us for one full month for 2 summers prior).
Furthermore, when he is with us, she will often demand that he be picked up earlier and/or returned earlier.

My stepson and his father get along wonderfully. In fact, my husband was a stay-at-home father for the first 3 years of his life. They are extremely close. I too have always gotten along very, very well with my stepson. I have also gotten along well with her until recently (she often calls and verbally abuses my husband and makes baseless threats).

While it is understandable that he may not be able to come here every now and then due to a special activity or ill health, I feel that it is very unfair of his mother to constantly withhold these visitations due to her own excuses. This is a control issue with her, or that she is simply jealous as to how much he does enjoy being with us.

First of all, what steps do we need to take to challenge this? Should we attempt to alter the original agreement since their location has changed? Also, can we petition the court (in the county where they reside)? If so, what would be the procedure? We are not able to afford much in attorney’s fees, so we are considering representing ourselves. Is this unwise?

Finially, what, if anything, would happen to her should she continue to not adhere to the visitation schedule, even after we take her to court?

I am sorry for being long-winded. But it has become imperitive that we do something before this wonderful boy looses out on time not spent with his father.

Thank you.

SLB