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
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
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.