In this article, you’ll discover:
- Remedies you have if your ex-spouse prevents you from seeing your children
- How to prove your ex-spouse is preventing you from seeing your children
- Whether you can stop paying child support if your ex-spouse prevents you from seeing your children
How Does New York Law Protect My Right To Spend Time With My Kids If I Don’t Have Custody?
New York law states you need to file for custody immediately. Generally speaking, unmarried persons file a petition in family court, and married persons file a divorce proceeding. If there’s an urgent issue in the divorce proceeding, you must file an order to show cause.
It’s similar in family court: You and your attorney can file an order to show cause because that somewhat expedites your case. If there are access issues, such as the other party not allowing overnight visitation or you are denied adequate parental access you feel you’re entitled to, file that order to show cause. Get it in front of the judge.
Some counties do have court rules regarding the filing of motions. For instance, in Westchester, they require that you file a pre-motion conference letter before you file a motion unless there’s an absolute emergency (such as abuse or neglect).
Get that issue before a judge and have the judge rule as soon as possible. That’s the number one priority, especially if you and the other party are separated or if your spouse has taken your kids away.
Can I Change The Custody Agreement If My Ex Prevents Me From Seeing My Kids?
It principally depends on the extent. If the agreement / order says you’re to get your kids Friday at six o’clock and your spouse is delivering the kids Friday at seven o’clock, that’s a technical violation of the order. If you document it well and it’s not rectified, that’s worth filing for enforcement.
However, if that’s the only thing you have in your favor, it’s not likely the judge is going to switch custody simply because the other party is delivering your children an hour late.
The judge considers several different factors in a custody determination. Be prepared to present evidence and testimony on each of those factors in your favor and evidence against the other party on those same factors. If you’re not ready to do that, your application is not challenging custody so much as enforcing parental access.
What Can I Do If My Child Refuses To Visit Me Because My Ex Is Influencing Them?
Navigating this issue can be difficult and requires great legal care. Is it your child refusing to visit you on their own, or is the other party influencing your child to fear or resent you? If the latter is true, a concept known as parental alienation might be going on.
Attempt to communicate with the custodial parent again. It could be that they’re influencing the child, but they don’t even realize they’re doing so. It may not be a conscious decision. In some cases, bringing that to their attention will help the situation.
You can also offer family counselling or counselling with the child to see what the custodial parent says. Either way, you’ll lose nothing by trying to get the child into therapy and talk issues out.
If the custodial parent says, “No, I’m not going to do that for the child,” that’s fodder for later litigation in front of a judge. In such a case, you can tell the judge:
“I brought my concerns to the custodial parent’s attention. They shut my concerns down. I offered to get all of us or our child into therapy. My ex shut that down, too. I’m at a point of last resort before you. I need you to rule on what’s happening.”
Can I Ask For Extra Time With My Kids If My Ex Doesn’t Let Me See Them During My Scheduled Visits?
Most of the time, when people make parenting agreements in divorce or family court, the agreement sets up a minimum baseline of parental access. It doesn’t necessarily mean that you can’t get more. You can request more time.
If the other parent says no, and you have a parenting agreement or order, you have to go back to court at that point. There is no self-help in parental access, especially if you have an order that sets forth a schedule.
If your ex has the child in their custody on weekdays and you get every other weekend, you can’t of your own volition pop up at your child’s school on Wednesday and tell them, “You’re coming with me tonight.”
It’s technically illegal for you to do that. Your ex could call the police, file an order of protection, or file for violation of the access agreement/order. There are better ways to go.
If any of these are true, get that issue in front of the judge:
- The custody agreement is several years old
- Times or the situation have changed
- The child is older
- The child wants some more access time with the non-custodial parent
- You want more time
How Can I Prove That My Ex Is Violating My Visitation Rights?
It depends on how your ex-spouse is violating your visitation rights. Most people are advised to use parenting apps like OurFamilyWizard, TalkingParents or 2Houses. Those are the standard apps people use. Whether you use those apps or email communication, document every step of the way what the violation was.
If you’re supposed to pick up the children at five o’clock on Friday and your ex refuses to produce the children until eight o’clock or doesn’t produce them at all, document that. Notify your ex that you were at the pickup location at five o’clock on Friday, and he or she wasn’t there. This communication will be confirmation.
Be specific in your documented communication with the other party. For example, you could type: “I later called you to find out where you were, and you merely stated that you were on your way, but then you did not show up until three hours later. Please be advised that this appears to be a violation of our agreement. Please be on time from now on.”
This saved communication keeps a running record of (a) you documenting the violation and (b) your attempts to rectify the situation. Any judge will look at you cross-eyed if there are multiple violations and you’re running back to court without attempting to rectify the situation.
Indeed, some parenting agreements require you to send out what the attorneys call a default notice letter, putting the other side on formal notice of their alleged violation before you do anything. If you attempt to rectify the situation and it can’t be remedied, file your application in family court.
How Do Courts Usually Handle Cases Where One Parent Denies Visitation For No Good Reason?
The court can take various actions if the other party is denying visitation for no good reason. The court can order makeup time if they feel the custodial parent failed to satisfy the judge’s determination whether they had a good reason to withhold visitation. That order is likely the number one thing the judge will do.
The judge also has the power to order sanctions. That can be a fine paid to the state or a counsel fee reimbursement. The fine can be anywhere from several hundred to several thousand dollars as a financial sanction against the custodial parent.
Another action that the family court or Supreme Court can take on an enforcement application is to order some level of probation or a pickup / drop-off site monitor paid for by the custodial parent. That’s not available in every county because they may not have the facilities.
In extreme cases, the judge can order incarceration or suspend a sentence. The suspension of the sentence could be based on compliance with the visitation schedule. For example, the judge might say, “I’m going to order this parent to produce themselves to jail on alternate weekends at six o’clock on Friday, but I’ll suspend that sentence so long as they comply with scheduled visits. The minute I hear through a written application that this parent has violated any visit, that sentence will be invoked.”
The judge can also order a switch of custody. Generally speaking, the judge will not switch custody without a full custody hearing. They will consider the violation as a factor in switching custody. The judge still goes through all the custody factors to decide that a custody switch is in the child’s best interest.
Attorney David Bliven is an experienced family lawyer with the highest industry ratings, based in White Plains and The Bronx, NY. He has helped countless clients just like you navigate the intricacies of family law. With 26 years practicing family law, he is prepared to protect your interests in your divorce case so you can gain peace of mind in a stressful time.
Still have questions? Ready to get started? Contact the Law Offices of David Bliven today to schedule an initial consultation.
Can Mediation Fix The Issue If My Ex Keeps Blocking My Visits With My Kids?
Often, if there’s a historical problem with parental access, the recommendation is to involve a parenting coordinator or general mediator. Parenting coordinators are better suited for the task because they have specific expertise in custody and visitation compared to a general mediator.
Suppose parental access has historically been a problem. You can have agreements saying if the parenting coordinator recommends a course of action, and the custodial parent refuses to abide by the recommendation, then that is a presumptive award of counsel fees to the other side, should they have to bring litigation.
You can craft those sanctions into your parenting agreements or ask the judge to order them. The judge can’t ultimately defer to the recommendation of the parenting coordinator, at least in downstate courts. Still, a judge can consider the custodial parent’s refusal to abide by the parenting coordinator’s recommendations. Mediation can help in some cases. In others, you have to litigate the issue.
Am I Allowed To Stop Paying Child Support If My Ex Won’t Let Me See The Kids?
If there’s an order in place for you to pay child support, you would be violating a court order if you ceased payments. Two wrongs don’t make a right. In theory, if your ex is violating visits and you’re violating a child support order, the top penalty for each violation is you both go to jail. Presumably, neither of you would want that situation.
Your remedy if your visitation is being violated is to take the issue to court. If you get a court determination that your ex violated your visitation, you could take that back to child support court and say you want reduced child support or some credit off child support based on their intentional violation of your visitation rights. These are factors the court can consider when modifying child support.
Even when you don’t have a court order, it is never a good look to the judge if your response is, “I’m just not going to pay child support because I’m not seeing the child.”
In the judge’s mind, child support is meant to cover the child’s portion of housing, utilities, and food. If you’re not paying child support, it will seem as if you’re saying that you don’t care whether or not your child has a place to live, lights to do their homework by, or food to eat.
What Steps Can I Take To Avoid Future Problems With Visitation Through Legal Agreements?
The more specific you are in the language, the better. There are bare-bones agreements that say, “Dad picks up at this location at six o’clock and drops off on Sundays at six o’clock.” Then, some agreements are 20 or 30 pages long. The more problematic a situation is, the more specific that agreement has to be to address the potential issues that will arise.
For example, what happens when school’s not in session? What happens in an emergency such as a snow day? How are the emergencies going to be defined, and by whom? What happens if somebody is running late? What happens when special events arise?
Again, the more detail you put into the agreement, the better off you’ll be in a high-conflict situation. With your attorney, discuss all the times you’ve had problems with the other parent so they can better craft language that zeroes in on those particular issues that you’ve been having.
What Legal Consequences Could My Ex Face For Refusing To Follow The Visitation Orders?
Penalties could include the following:
- Made-up time for the missed visits
- Sanctions, either a fine or counsel fees
- The court imposing either a parenting coordinator or a pickup/drop-off site monitor
- Jail time for the custodial parents
- Switch of custody
Usually, those extreme situations of jail time or custody switch occur only after a full hearing where the court has considered every single factor that would go into a custody determination in the first place.
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