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Enforcing Visitation

Elizabeth S. Pagel, PLLC March 21, 2023

Children have the absolute right to have a relationship with both parents.  If you and your child’s other parents have separated or divorced, you should have a court order setting out, in detail, where the child lives and when the other parent has the right to see the child.  If your child’s other parent is not letting you see your child as ordered, you have remedies that are available to you through the court.

First, if the child resides primarily with you, the visitation order is when the other parent has the right, but not the obligation, to see your child.  If he or she doesn’t show up to pick the child up, there’s nothing you can do about it in terms of enforcement. 

The very first paragraph of almost all visitation schedules will say that the parents have the right to see the child “at all times as agreed upon by the parents.”  So if Dad has tickets to a ball game and wants to take the kids, even if it’s not “his” visitation time, if Mom agrees he can pick the kids up and off they go to the ball game.  If Mom has the kids for the weekend and wants to keep them an extra day and Dad agrees, she can keep them.  It’s when the parents don’t agree that the court order comes into play.

Only the court order is enforceable.  It doesn’t matter what you have agreed to between the two of you; if one parent no longer agrees to it, the other parent cannot force them to do so.  

If you need to file an enforcement with the court, you’re going to need an attorney.  Legally, you do not have to have an attorney to ask the court for something.  Legally, you can also get out your pocket knife and attempt to remove your own appendix.  In both situations, you’re unlikely to be happy with the outcome.  Enforcements are extremely complicated from a legal standpoint, and you only get one shot at it.  If you miss a step, the court cannot give you what you want and you don’t get to try again.

Before you go to see your attorney, you need to do some prep work. 

  1. Make sure you have a copy of the court order. If you don’t have one you can probably get it from the court that entered the order in the first place.   There will probably be a charge for this.

  2. Keep a log. Whether you use a notepad, a fancy spreadsheet, a calendar app on your phone, keep a record of everything that happens that is not part of the plan. You need to write down exact dates, times, locations, all the details about when and where and how the other person was supposed to do something, and what that person did instead.

For example, if the court order says, “Paul Brown is ordered to surrender the children to Muriel Brown on the first, third, and fifth Friday of every month at the 6:00 p.m. at the residence of Paul Brown,”  and when Muriel shows up to collect the kiddos Paul and the kids aren’t home, or Paul just says, “no,” then Muriel needs to write down the date, the time she got there to pick up the kids, and what happened.

So, what if Paul called Muriel the day before, or earlier in the day, and said, “You can’t get the kids this weekend because reasons”?  Muriel should still show up! She has to be able to show the Court that she tried to exercise her visitation, and Paul prevented her from doing so.

As another example, your court order will probably also have language about when Muriel is supposed to bring the children back to Paul.  If she is consistently late, brings them home at 8:30 p.m. instead of 6:00 p.m., Paul needs to be keeping notes for an enforcement as well.

  1. What do you want the court to do? Your attorney will discuss the options you have available, but you should think about it ahead of time.

    • Does Muriel want Paul to go to jail?

    • Should Paul have to pay a fine?

    • Does Muriel want some make-up time with the kids?

    • Are there some expenses that Paul should have to be responsible for—a missed flight, a cancelled vacation?

Court orders need to be obeyed. If you have a court order that is not being followed, let us help you get things straightened out.  Call us and let’s talk about it.