
Interference With Custody or Visitation
FAQ
From the Nolo.com Divorce & Child Custody Center
Know your legal rights if your child's other parent
doesn't cooperate with a legally established custody or visitation arrangement.
My ex-wife and I share joint legal and physical custody of our kids.
But I am the only one who does their laundry, makes sure their homework
is done and keeps their activity schedules straight. How can I get her
to share equally in these responsibilities?
First, consider whether or not your ex-wife is intentionally dumping
so much responsibility on you. Perhaps her personal or employment schedule
is overwhelming. Before taking legal action, try a heart-to-heart conversation
without the children present. Explain that it's hard for you to handle
everything and ask for her support. If this doesn't work, write her a
polite letter detailing your tasks and suggest what she could do to help.
Send the letter certified mail, and give her a reasonable time -- say,
two weeks -- to respond. If she doesn't acknowledge your letter or make
any changes in her behavior, going to court may be inevitable. Ask the
judge to order that you and your ex split the parental duties. Sometimes
a written order from a judge will spur a lagging parent into action.
Last summer, my ex-husband took our kids on vacation and didn't tell
me where they were going. Can I prevent him from leaving me in the dark
this year?
This is a tough one. On one hand, your ex-husband is free to take the
children where he wants, as long as they aren't harmed -- unless your
custody and visitation arrangement provides otherwise. On the other, it
may not be in your children's best interest to be unable to speak with
you during this time, especially if an emergency arises. The key is to
plan ahead.
Ask your ex-husband two months prior to the scheduled vacation where
he plans to take the children. It might help to explain why you want this
information, so he doesn't think you are trying to interfere with his
plans. If he doesn't provide an answer within a week, put the request
in a certified letter. You might want to send a copy of this letter to
his lawyer, if he has one. Avoid displaying your anger in the letter because
you may be required to show it to a judge later. Usually an attorney will
convince an ex-spouse to provide this information to avoid embarrassment
in court later.
If your ex (or his lawyer) does not respond to your letter, consider
filing an "order to show cause" before the vacation. This document
would demand that your ex appear in court and explain to the judge why
he shouldn't have to tell you where he plans to take the kids. A judge
will most likely order your ex to provide the information.
My ex-husband has physical custody of our daughter and I have visitation
every other weekend. He wants to relocate 600 miles away for a better
job. If they move, I could only afford to see my child every few months.
Can he do this?
That depends on which state's law governs. It's usually the state where
your divorce was issued, or where the child currently resides. States
vary widely when it comes to rules about relocation. Some states allow
parents with physical custody to relocate with the child no matter how
much distance is involved. Others favor the rights of the non-custodial
parent to maintain an ongoing relationship with his or her child, and
are reluctant to allow such moves. Some courts require the moving parent
to have a job, secure a home and select the child's school before moving.
Before going to court, try talking to your ex-husband. Explain your financial
situation and how it will affect your ability to see your daughter. If
he insists on the move, court intervention may be inevitable. At that
point, it may be worthwhile to consult a family law attorney to learn
about the law in your state.
According to an existing visitation order, the mother of my son is supposed
to pick up our little boy on the same day and at the same time every week.
She is usually late -- and sometimes she doesn't show up at all. What
can I do?
First, it's important to find out why she doesn't stick to the plan.
If it's because of employment responsibilities or caring for other children,
maybe you simply need to make some changes to your current schedule. If
you discuss the situation with her and can't reach a mutually agreeable
solution, consider asking a judge to enforce or modify the visitation
order. Modifications could be as simple as switching dates and times,
or as severe as reducing the length and frequency of visits. Whatever
you decide, you might want to note any lateness or no shows on a calendar
then prepare a list in chronological order. This way, if you do go to
court, you'll be able to document the severity of the problem.
My ex-husband has visitation with my two-month old baby one night each
week. He lives in a studio and doesn't have any baby accessories. Do I
have to let him take my baby overnight?
Because a judge has already ordered overnight visitation, you should
comply. But you should also firmly suggest to your ex that he purchase
what the baby needs. Of course, unless the court order says he must have
specific items prior to taking the child overnight, he's not required
by law to get them. You can, however, request that the court modify the
existing order to include the purchase of these items. As long as you
are reasonable, a judge will most likely insist that the father buy a
crib and other necessary items.
I've had physical custody of my son since his birth. Now that he's a
teenager, he wants to live with his father who has promised him a car.
What can I do?
First, you should consider why you object to the switch. Once you do
some soul-searching, you may find that the change would be good for your
son. If so, let him go.
If, after some serious thought, you still feel it would be in your son's
best interest to remain with you, you can refuse to allow him to live
with his father. But that may prompt your ex-husband to petition the court
for a change in custody. And, once kids hit the teen years, judges will
listen to their preferences. That doesn't mean a custody change is automatic,
but it does mean that the judge will give weight to your son's feelings
and reasons for wanting to live with his father. Keep in mind that arguing
and speaking ill of your ex may cause a judge to agree that a change would
be best. Of course, if the father is a danger to your son, you should
make this clear to both your son and the court. But, if you want to avoid
a nasty court battle, maybe you, your son and his father can agree to
joint physical custody or generous visitation.
My ex-wife and I share joint legal custody of our child. She fights
with me about every decision we make regarding our daughter's education,
religious upbringing and medical care. Do I have to keep her in the loop?
Sharing joint legal custody with an ex-partner can be uncomfortable at
times, but you would be acting contrary to the court's order if you didn't
involve her in major decisions affecting your child. If you do stop including
your ex in these decisions, she could take you to court. A judge may order
both of you to work it out, or give sole legal custody to just one of
you -- a result that could prove harmful to all involved. For everyone's
sake, it's usually best to reach an agreement without going to court.
To do this, it might help to try to understand why your ex is fighting
with you. For example, if you have physical custody, maybe she is envious
of the time you spend with your daughter and is trying to assert her rights.
In that case, perhaps a more generous visitation schedule would help.
My kids live with my ex-wife. I usually send my child support check
on time. But I'm thinking of withholding it as a bargaining chip so I
can see my kids more often. Is this a good idea?
Definitely not. Visitation and child support are separate legal matters,
and courts frown upon parents using the children or money as leverage.
If you're not happy with your visitation schedule, first try calmly discussing
this with your ex. If she insists on sticking with the court ordered dates,
you might consider asking a judge to increase the amount of visitation.
You might even want to think about joint physical custody if you and your
ex live close to one another. But beware: Courts won't order this unless
it's clear that the children won't suffer unnecessarily and the parents
can work as a team.
I have sole physical custody of our children. Several times my ex has
not returned the kids on time after taking them for a visit, and I'm scared
one day he won't return them at all. What are my rights as the custodial
parent?
In most states, taking a child from his or her parent with the intent
to interfere with that parent's physical custody of the child (even if
the taker also has custody rights) is both a crime and a violation of
civil law. It also almost always violates visitation and custody orders.
Usually, the parent deprived of custody may sue the taker for damages,
as well as get help from the police to have the child returned.
The offender may also be charged with kidnapping. And, in many states,
if the parent takes the child out-of-state, the crime becomes a felony.
Of course, there are exceptions. Those include taking a child out-of-state
in order to prevent imminent physical harm to the taker or the child.
Or, taking a child out-of-state when requesting custody in court, as long
as the police are notified of the child's location.
If your ex continues to be late, consider asking the court to reinforce
the drop off times. If your ex threatens not to return the children, and
you believe he or she is serious, you can file an what's called an "order
to show cause" in court. This will get you an emergency hearing to
discuss this issue and any possible remedies.
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