Last Updated on August 11, 2023 @ 8:30 am
A child visitation agreement or parenting plan, stipulates the amount of time that a child spends with each parent. In most states, this is referred to as one of the following: a Parenting Plan, a Custody Agreement, or an Allocation Judgment. Whether parents are married or not, they discuss and begin exercising their visitation and parenting time rights as soon as they part ways. If visitation and parenting time has been established but one parent does not follow the court order that is in place, the other parent needs to take action immediately. Speaking to a child custody attorney when this happens is incredibly important as navigating the court system to have an order enforced by a judge (by filing a contempt petition) is one difficult, even for lawyers that lack years of experience.
Establishing a Parenting Plan / Visitation Agreement
Establishing a visitation agreement or parenting plan is essential when it comes to making concrete plans that the other party cannot violate. A parenting plan lays out all of the various rights and responsibilities of each parent in writing and is entered and signed by a judge. The parenting plan will include and detail various child-related issues such as:
- Parenting time (dates and times when each parent has the children for their visitation period);
- Custody order (whether joint custody, sole custody, or shared custody is awarded to the parents – also called allocation of parental responsibilities or decision making);
- Each parents rights to attend school functions and extracurricular activities;
- Each parents rights related to attendance at and decision making regarding medical conditions or doctor appointments;
- Holiday and vacation schedule (typically, the parents alternate holidays with one parent having some in odd years and then having those holidays in even years);
- Vacation parenting time (possibly awarding each parent 2-3 non-consecutive weeks of vacation over the summer);
- Communications, such as daily Facetime or phone calls with the kids as well as how the parents should communicate (such as via text, phone call, email, or a parenting app like Our Family Wizard); and
- Many other issues that relate to the child’s upbringing like education, transportation, passports, etc.
When parenting time (child visitation) has officially been established in writing by way of a parenting plan and court order, it serves as a legal agreement to which each parent is bound. Most states require that parents that either want to change something within the court order or believe a parent has violated the court order follow a process, depending on what specifically was violated (and why it was violated). Depending on whether the violation of the existing court order (parenting plan / custody judgment / visitation agreement) is a minor violation or a big violation, the process and what needs to be done are very different.
Minor Violations or Requested Changes to Parenting Plan
Typically, if a parent wants to change the parenting plan and/or if there is a “minor violation” of the court order (parenting plan), the courts will require them to first discuss with the other parent (in writing) the proposed change and initiate a discussion. If the parties disagree on the change (or the minor violation), the parties likely are supposed to attempt to have the dispute mediated with a jointly chosen mediator. If the mediator cannot solve the issue and find agreement, the next step is to go to court and file a motion or petition asking for the court to decide the issue at hand.
The “minor violations” here are exactly that – minor – such as discussing a simple change in the court ordered pick-up and drop-off schedule because of a change in work hours that might be causing a parent to drop the child off late. This can be addressed by making an agreed parenting schedule change. Big violations, on the other hand, are treated much differently than this though. A big violation would be things like refusing to let a child and the other parent have their phone or video calls, not dropping the child off for the other parents visitation and parenting time to start, and refusing to allow the other parent to pick up the child to begin their parenting time in violation of the visitation schedule and parenting plan.
Withholding a Child from Visitation
The situation becomes more serious when one parent withholds a child from visitation – denying the parenting time that was ordered by the judge. This happens for a variety of reasons, such as to get the other parent to pay child support, agree to handle all transportation, or sometimes, just to spite their ex. From a legal perspective, child support and parenting time are completely different things. A judge will do more than just frown upon a parent violating a parenting plan for the purpose of obtaining past-due child support payments and this may result in the parent losing primary custody. In many states, the unreasonable denial of visitation as ordered by the court can even be a criminal offense. Although normally prosecution is withheld for only repeat offenders, the threat of being held in contempt of court by a judge can help keep the parent that threatens to withhold a child from visitation in line with the set schedule.
When a parent intentionally violates a parenting plan by withholding a child, the situation has become ripe for the filing of a motion to have the violating parent held in contempt of court. Contempt of court is when a person intentionally violates a judge’s order and does so without a good reason. There are multiple types of contempt, but the most common type of contempt in family law cases, primarily “civil contempt” and “criminal contempt.”
The most common type of contempt found in family law cases is called “indirect civil contempt.” Indirect civil contempt takes place when the contemptuous action (such as violating a court order by refusing to follow the parenting plan) happens outside of the presence of the judge (not in the courtroom). The point of holding a person in civil contempt is to force that person to either do something (allow visitation / parenting time) or stop them from doing something (hiding the child to avoid parenting time exchanges). Civil contempt could mean a parent goes to jail, but they would be released as soon as they comply with the court order.
Withholding parenting time and violating a parenting plan can also subject the violating parent to “criminal contempt” as well, but this is rare, primarily because criminal contempt requires all the formalities of a criminal proceeding – like a jury trial. Criminal contempt is where a violating parent could be held in jail for an extended period of time, not to force them to do something or stop from doing something (as in the civil contempt example above), but to punish them for their actions. That is the big difference between the two types of contempt.
Occasionally Violating a Parenting Plan
If a parent occasionally withholds parenting time, the other parent should record the dates and times and request make-up time, especially if there is a reasonable excuse (maybe a birthday party for a family member/grandma, or a funeral, etc.). If the that parent then refuses to reschedule the missed parenting time, the parent with lost parenting time should look to speak with a child custody attorney to begin the process of court enforcement of the order. In no case should the individual withhold child support or take the child without agreement – that is a sure fire way to flip the case upside down and make you the ‘bad guy’ in the situation. A parent that has been denied their court ordered parenting time must enter court with “clean hands” in order to make a compelling and successful case to the judge. This means continuing to pay child support and continuing to offer reasonable makeup time offers in writing to the other parent. When all else fails, the filing of an emergency motion can get a parent in front of a judge in a matter of days and have the issue resolved quickly – albeit in court ordered fashion.
Consistently Violating a Parenting Plan
If parenting time / child visitation is consistently withheld and denied by a parent, this is a direct violation of the courts order. In some states, the non-custodial parent may go to the police for visitation enforcement. However, most of the time what happens is that the police tell the people to go to court and have the judge take care of it. The police typically do not like to insert themselves into deciding what should be done and what the parenting plan says should be done. When the police are called, you would need to have a copy of the parenting plan for the police to view in person. However, police involvement can cause other problems with either parent and may create trauma for the child. A wiser approach is to retain an attorney to file a motion in court to enforce the parenting plan.
The normal procedure when a parenting plan is consistently violated in a big way is the filing of a Petition for Contempt (typically called a “Petition for Rule to Show Cause”, an “Order for /Show Cause Hearing”, or a “Petition for Adjudication of Indirect Civil Contempt”). The petition (motion) needs to follow a basic outline to be considered. The basics are: 1. A court order was entered by a judge (attach the court order to the motion); 2. The order said to do or not do something specific (copy that portion word for word); 3. The other parent violated that specific portion of the judges order; and 4. The other parent has no reasonable explanation for why they refused to follow the court order. In the majority of states, that is the absolute bare minimum for what must be shown to get a contempt petition before a judge and have the parenting plan enforced.
Most states consider non-compliance with a parenting order a very serious offense and the judge may decide to make a custody change. Some judges get so upset that their order was not followed, they give the majority of parenting time to the parent that had their visitation withheld (as many judges have stated, a court order is NOT a recommendation – it is a demand!). As previously stated, a number of states have made the denial of parenting time a criminal offense and parents can be arrested and jailed if they are eventually held in contempt of court.
How to Enforce Parenting Rights
First, keep notes and save all communications where a parent changes the parenting plan, every time a parent refuses to allow parenting time to take place, and every message or voicemail left related to the violation of the court order. This will be essential in proving your case and enforcing the parenting plan in court. Because each state uses slightly different methods to enforce visitation and parenting plans, working with an experienced child custody lawyer is best way to win your case. The goal should always be an outcome that maintains rights to visitation and parenting time which would be in the best interests of your child. Don’t wait months (or years) and put off multiple violations without seeking the courts enforcement help – this can only hurt your chances and make it seem like it wasn’t important to you. Get a child custody attorney involved immediately and secure the parenting rights that you deserve.