How to Enforce Visitation Rights

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parts

1Preparing to Enforce Your Visitation Rights

2Creating a Motion to Enforce Your Visitation Order

3Enforcing Your Rights to Vistation

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Tips and Warnings

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Marriages and relationships end, but parenting is a lifelong commitment. As families and family law continue to evolve, the courts have become more proactive in making sure that both parents remain involved in the life of the children. Visitation, also called parenting time, is critical to the adjustment and development of the children and, unless there is a reason not to, judges will be very strict with a parent who is denying adequate visitation. You can use the court system to enforce your visitation agreements. In many cases, you will not need a lawyer to file the appropriate motions.

Steps

Part 1

Part 1 of 3:

Preparing to Enforce Your Visitation Rights

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   Review your divorce or paternity order. When parents of a minor child split up, the divorce or paternity order establishes several rights and responsibilities. For example, the order will establish which parent has residential custody, which parent pays child support, and schedule visitation for the non-custodial parent.

   • This collection of orders is called a Parenting Plan. The Plan is intended to help reduce conflict and refocus the parties away from their strife and back to their children.
   • When the court looks at the Parenting Plan, the standard will be the "best interests of the child." This legal standard considers factors that include the ability and circumstances of the parents with the child's safety and well-being as the goal.
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   Record and track your visitation. As soon as the court-ordered visitation begins, the non-custodial parent should keep a record of visitation, even if it is just a note on a calendar. If you haven't kept a record from day one, start as soon as you begin having trouble with visitation. For example, if the Parenting Plan says you should have the children on Spring Break, but the custodial parent brushes you off saying there is a family vacation planned, you need to record it. Keep track of all of your attempts to see your children and the excuses you are given.

   • You will need some specific examples of denial of visitation to support your argument if you have to go to court.
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   Contact the custodial parent. Depending on your relationship with your ex, the first step is to register your complaint. Sometimes a discussion can remedy the situation. If not, write a letter reminding the custodial parent of the agreed-to visitation schedule in the Parenting Plan.

   • Be specific. For example, "According to our Parenting Plan in case [number] that we both signed on [date], I am supposed to have the children on alternate weekends. You have denied me visitation for the last two months and refused to reschedule. I will be picking up the children on [date/time] at [place]. Please have them ready for a full weekend visit." Attach a copy of the visitation order.
   • Be polite, but firm, with the same tone you'd use in a business letter. Tell the custodial parent that you expect the children to be ready at a specific date, time, and place, and if you are denied that you will seek a legal remedy.
   • If your relationship is unusually contentious, send the letter by certified mail so you can verify that it was received.
   • If this does not work and you are still being denied visitation, you can ask the court to help you through a Motion to Enforce Visitation.
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Part 2

Part 2 of 3:

Creating a Motion to Enforce Your Visitation Order

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   Know your rights. Absent a history of neglect or abuse, the court wants and expects parents to cooperate where their children are concerned. In most states, it is written into the law that the court considers it to be in the best interest of the children that the custodial parent facilitate visitation with the non-custodial parent.

   • The language that appears in many statutes is, "The willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders."
   • Case law is clear that the rights, feelings, convenience, and comfort of the parents are secondary to the best interests of the child.
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   Consult with legal resources for your motion. Many courts have streamlined the procedure for enforcing visitation, sometimes down to fill-in-the-blank forms. However, if you feel uncomfortable representing yourself, it doesn't hurt to look into legal advice and potential representation.

   • Legal Services is a nationwide network of non-profit public interest law offices that offers advice to residents of every county in the United States. If is unlikely you will get representation unless there is a history of abuse or domestic violence. However, legal aid is an excellent source for forms packages and practical advice on what you need to do in court.
   • Check the LawHelp online network for do-it-yourself forms packages and information about the laws in your state.
   • Contact the court clerk's office in the county where you will file and see if they have a pro se forms package for a Motion to Enforce Visitation. You may be charged a small fee for the package. You court may also have a streamlined procedure including simplified forms.
   • Consult with a private attorney. Most family law attorneys will meet with you for a reasonable consultation fee. You can ask your questions and be advised of the requirements for your court. Also, in most states, for either a fixed price or hourly rate, many attorneys will prepare customized forms for your use in court.
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   Choose the court where you will file your motion. The easiest place to file post-decree motions is in the court that originally granted your divorce. The court has all of the original files and the judge may remember your case. However, if your ex and the children have moved, you can file in the county where the children have been living for six months.

   • If you are filing in another court, attach a copy of your divorce decree and Parenting Plan to your motion.
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Part 3

Part 3 of 3:

Enforcing Your Rights to Vistation

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   Prepare your Motion to Enforce Visitation. Using blank forms, you will need to identify yourself and the other parent, the children, the case number and date of the divorce decree, and the parts of the Parenting Plan that is being violated.

   • Be specific, citing dates and excuses you received when you tried to see your children. Use your visitation calendar to back up your arguments.
   • Sign your motion in blue ink to show it is the original. In some states, it may require notarization. Most banks will offer this service free to account holders or for a small fee.
   • Make two copies of the signed document if you can. If not, copies should be available at the courthouse for a fee.
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   File your motion with the court clerk. There may be a charge for filing your motion. Filing fees typically range from $50 to $150 for post-decree motions. If you are low income, you may be able to have that fee reduced or waived. Ask the court clerk for the local procedure.
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   Serve the motion on the custodial parent. Most courts require your Motion to Enforce to be personally served on the other party. The easiest and least expensive option is to have the sheriff serve the motion. You will have to give the sheriff's office copies of the motion, fill out a request, and pay the fee. Expect to pay around $20, or about half the cost of a private process server.
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   Attend your court hearing. When you file the motion, you will receive a court date. You must attend. If you miss the hearing, the judge may dismiss your motion and you will lose your filing fee and have to start over. Even if you and your ex come to an agreement, still appear in court to put the new agreement into the court record.

   • Courthouses are busy places. Give yourself plenty of time to park and find your courtroom.
   • If you have other children, arrange for child care. Many judges do not allow young children in the courtroom and you can't leave them in the hall unsupervised.
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   Present your case. When your case is called, stand and come forward. There will either be tables or podiums for each party. As the one asking for the motion, you will speak first. The judge will either ask questions or let you tell your side. Work through your motion, step by step.

   • Keep it simple and don't worry about sounding like a lawyer. For example, "Your Honor, my name is [name.] My ex-spouse [name] and I were divorced on [date]. We have [number] children, aged [ages]. Under the Parenting Plan, I am supposed to have visitation with the children on [short summary, i.e., "every other weekend", "four weeks during the summer."] My ex-spouse has repeatedly denied me visitation [give several examples]. Instead of seeing my kids, I get excuses like [reasons] and I am never given a chance to make it up on another weekend."
   • The custodial parent will speak next. Do not interrupt, even if you disagree. Don't roll your eyes or make rude noises. Make notes because the judge will allow you to speak again. Finish up by asking the judge to order your ex to comply with the visitation order.
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   Receive the ruling. If you have shown that the custodial parent is unreasonably withholding visitation, the judge will likely rule in your favor and order your ex to produce the children on the next visitation cycle. The judge may also order extra time to make up for lost visits. For example, every weekend or additional vacation time until the missed parenting time is made up.
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   Maintain your visitation diary. If the custodial parent continues to ignore the court's orders, you can go back to court and ask for sanctions, up to and including changing custody.
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Warnings

• If you are behind in your child support payments, this is not a reason for the custodial parent to withhold visitation. However, expect to be called out about it and to explain the situation in court.
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