by Aaron Dishon, Esq.
It's a safe bet that every parent wanted to be with his or her children during this past holiday season.
Unfortunately, it is just as certain that many were unable to be with their children because of a one-sided custody arrangement.
As usual, I received many calls from parents asking for advise as to what they could do to re-establish a regular custody schedule with their children and to establish some visitation during the holidays. I often hear my client complain: "My Ex always makes it difficult to see the kids, they always have some sort of excuse not to let me see them."
Additionally, clients often feel that their court orders are vague and do not specify which holidays and vacations should be spent with each parent. I would like to offer some suggestions as to how to assert your right to visitation and see your children on a more regular basis.
Seeking a change in custody or visitation is a long process and a big commitment, both emotionally and financially.
Should you choose to seek such a change, you must realize that the process may take several months. You won't be able to get custody of your child during the next holiday season if you commence your action one or two weeks before the holidays. But don't let the bureaucratic roadblocks discourage you! Your efforts will be rewarded for many years to come, as you will play a larger role in your child's life.
In order to maximize your change or success, you should begin planning your strategy in consultation with an attorney several months in advance of the holiday or vacation. If you are unable to afford an attorney, you may want to consult with a paralegal, or perhaps you can find an attorney who is willing to work with you on a "consulting basis."
The legal system that creates custody and visitation arrangements is an imperfect one, and it only takes a minimal amount of creativity for a parent with primary custody to find ways to thwart your visitation. Furthermore, going to court to get a finding of contempt in order to force your former spouse to cooperate often irritates judges who already have full calendars. You have already been in court once to resolve your dissolution, so judges tend to wonder why you are back again.
Therefore, I would advise that you think long and hard before going back into court, and only do so when there is serious interference with your visitation and you have given it your best shot to resolve the matter with your ex informally.
Still, where a parent has intentionally and systematically thwarted visitation and it is unlikely that you will be able to have a heart-to-heart talk with the hostile former spouse and reach a fair agreement, you only solution may be to take the problem to court.
While it is possible to obtain sanctions and/or findings or contempt, these measures do not ultimately solve your problem, which is that you have been denied visitation with your child. Many judges do not award such sanctions until the parent with primary custody has been hauled into court two or three times and has a history or violation court orders.
Rarely will a judge order your former spouse to jail for contempt. Thus, while I often use contempt and sanctions as part of my practice, I put a larger emphasis on increasing and defining more clearly my client's custody with their children.
As you are probably aware, all court orders regarding custody and visitation are subject to continuing court jurisdiction and later modification.
Under California law, for example, a parent may request a change in visitation or custody where there are substantial changed "circumstances". Examples of these include family emergencies, change in employment or health, and denial of visitation. In deciding such a request for modification, the court must consider the "best interest of the child."
The procedure for obtaining modification is started by filing an Order to Show Cause ("OSC") for modification with the court and serving it upon the former spouse. If it is to your advantage, you may wish to file for a change in child support concurrently with your custody modification. You will also need to attach a written declaration to your OSC detailing the reasons that you seek the modification.
Long before filing the OSC, you should prepare by documenting any problems that you or your child has had with your ex-spouse, and any changes in circumstances. The following are some factors to consider and things that you should begin the document long before seeking any modification:
Frustration of Visitation:
Is your ex-spouse frustrating your court-ordered visitation and denying you contact with your child? School Performance: How is your child performing in school? Investigate your child's performance by interviewing his or her teachers. Is the child's homework getting done? Do the teachers notice any unusual behavior?
Is your child being provided with a stable and healthy home environment? Are there any problems with child abuse, drugs, smoking, or any other conditions in the home? Does your ex-spouse and her new companion behave appropriately when the child is present? Does you child receive proper supervision?
Discipline and Punishment:
Is corporal punishment being inflicted upon your child? Is this punishment at the level of abuse? Is the child being punished by someone other than the parent?
Fitness of the Ex-spouse as a Parent:
Has the ex-spouse committed any crimes? Has your ex-spouse committed any Driving While Intoxicated offenses? Does your ex-spouse smoke marijuana or engage in some other kind of substance abuse? Does the ex-spouse have mental or medical difficulties that impair their ability as a parent.
Is the ex-spouse employed? Are the children always in daycare or the care of relatives? Are you more available to spend time with the children? Has a change in your employment increased the amount of time with the children? Has a change in your employment increased the amount of time you can devote to your children?
Do you now live closer to the children and can see them more often than you previously could?
While the list above is far from complete, it should get you thinking as to some of the circumstances that would justify a modification in visitation and/or custody. You should try to document as many of there behaviors and circumstances as possible prior to going into court for modification.
Another important goal it to modify the custody order to be more specific regarding holidays and vacation.
Often, the existing order is somewhat vague as to which parent will have the child during holidays and vacations. Under these circumstances, I advise my clients to seek a more specific "parenting plan".
One example of how you could create a more structured plan on odd numbered years and with the other parent on even-numbered years. Your attorney or your local court's mediation department can help you in drafting this kind of plan.
A specific parenting plan will help prevent your ex-spouse from "making excuses" in order to deny you visitation, and will provide you with a definite order which if violated will be a good basis for seeking
Visitation was written
Dishon; Copyright Dishon
& Block, APC.