Last Updated: December 7, 2022
If you have an issue with the other parent of your child, you might need a lawyer’s help to enforce a visitation agreement that is not being followed. Visitation rights are extremely important to divorcing and unmarried parents because they dictate how often the adults can see their children. A visitation agreement, (also known as a ‘Custody Judgment’, ‘Parenting Plan’, or ‘Allocation Judgment’), details the child visitation schedule for each parent, serving as an enforceable written document.
A court order detailing the parenting time (and man other child related items) gets signed and entered by a family law judge. Having that order is the key to enforce a visitation agreement when future problems arise (and they likely will). Speaking with a child custody attorney for a free consultation should be your absolute first step.
Visitation Agreement Problems
If the parents get along, each parent can voluntarily enforce a visitation agreement out of court through collaborative law or an informal divorce settlement or child custody negotiation. This might take place through the process of mediation, or by two attorneys working together with the parents to come to an amicable agreement. In the end, this visitation agreement / parenting plan must be approved by a judge. If the issue goes to court, a family law judge will consider the best interests of the children when making child custody and visitation agreement decisions.
It might not be easy to get a parenting time plan drafted that both parents agree to 100% of the terms. Both parents need to always remember that it is not necessarily what either of them wants, the ultimate decision needs to be based on what is best for the kids. Many factors go into this, through a legal standard known as “the best interests of the children.” All 50-states follow this standard, although they vary slightly on what factors should be applied and how much weight is given to each factor. These factors end up being the most common reasons why issues come up and why a lawyer is needed to enforce a visitation agreement.
The most common “best interest” factors are the following (there are many more!):
- Ability of each parent to provide for the child
- This means giving the child a clean and orderly home, food in the fridge, and ensuring that each parent gets the kid to school, doctors appointments, and other tasks associated with positive child rearing
- Stability
- This is always one of the most important elements. Stability of the home environment is what is considered here (and not just the physical home itself). Judges do not like when kids move every year or do not have a stable living environment. A schedule for the child (school, bedtime, mealtime, etc.) are essential for a child after the parents split up – routine is good!
- Primary caretaker of the child
- Who has been the primary caretaker of the child? If one parent is a stay-at-home parent and the other works full-time, this doesn’t necessarily mean the employed parent stands no chance because once they split up, the other parent will likely need to get a job. But knowing whether both parents participate – to some extent – in child related activities (school, sports, extracurricular activities, doctors, etc.) is something that will get investigated.
Best Interest Factors and Visitation Issues
Many times, parenting plans end up with issues because one or more of the factors above are not being adhered to (or it could be something else). If a parent does not think the other parent has a stable home (the parent has moved 4-times in 2-years), visitation issues can take place where the stable parent denies letting the child go to the other parent’s house. Or maybe the parent that is constantly moving has to cancel his/her visitation all the time. Either of these situations can end up with the other parent needing to enforce a visitation agreement against the other parent.
Enforce a Visitation Agreement with Contempt
If the parties to the entered visitation agreement do not adhere to it, they will face legal consequences, some of them, incredibly serious in nature. Willfully ignoring a valid parenting plan can be punishable with jail time or it could result in the changing of custody/parenting time against the offending parent.
For example, if the parent with visitation rights does not return the children to the parent with primary custody on the day and time outlined in the visitation agreement, the parent with primary custody might contact a child visitation lawyer. This probably wouldn’t happen if the return was a few hours late, but likely if returning the child was days late or happening on a repeated basis over some time.
In this instance, family law attorney would likely file a motion called a “Petition for Rule to Show Cause” or a “Show Cause Hearing”. The entire point of this motion is to enforce a visitation agreement that has been violated. The lawyer will write, in the motion, the following: 1.) a visitation order was entered; 2.) the order is not being followed by someone; 3.) the person not following the order has no justifiable reason to violate the order; and 4.) that person should be held in contempt of court and forced to comply immediately. Contempt hearings frequently force the violating party to pay for attorneys fees, fines, and sometimes eve jail time.
Modifying a Visitation Agreement
When parents want to change the visitation agreement, they should not do so on their own and not follow the written plan. A visitation schedule cannot automatically be modified just because it does not work for one parent. A court will generally not approve revisions to a visitation agreement unless a substantial change in circumstances occurs.
An example would be the child starting to attend school after the initial agreement was established. An attorney should be given the parenting plan and existing visitation schedule for review. The attorney will then assess the changes in circumstances and provide advice regarding the best course of action. They will help show you how or why a visitation agreement should or can be changed. Your visitation rights should not be denied, even if a change needs to be made.
Next Steps
Each parent should adhere to the details outlined in the visitation agreement. If the schedule becomes difficult for either adult to adhere to, an attorney should be retained to have the document revised ad a petition filed to modify the agreement. But when someone refuses to follow the written plan, there is a process to enforce a visitation agreement in court. The first step is speaking with an experienced child custody attorney to get a free evaluation to see what needs to be done to retain your parental rights.
