Changes in Custody or Visitation May Take Time
Seeking a change in custody or visitation is a long process. It is a big commitment-both emotionally and financially. If you choose to seek a change, it is important to know that the process can take several months.
If you begin your action a few weeks before the holidays, it is unlikely that you will get custody during that same holiday season. However, don’t be discouraged by the bureaucratic roadblocks; your efforts will be rewarded for years to come as you play a larger role in your child’s life.
The legal system that decides and enforces custody and visitation arrangements isn’t perfect.
In order to maximize your chance for success, begin planning your strategy by consulting with an attorney several months in advance of a holiday or vacation. While an attorney is always advised, if you cannot afford one, you might consult a supervised paralegal or an attorney who is willing to work on a consulting basis.
When to Pursue a Change in Custody or Visitation
The legal system that decides and enforces custody and visitation arrangements isn’t perfect. It 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” to force your former spouse to cooperate often irritates judges who already have full calendars.
It is advisable to go back to court only when:
- There is serious interference with your visitation
- You have tried your best to resolve the matter informally with your former spouse.
Still, it is unlikely that you will reach a fair agreement with a hostile former spouse who has intentionally and systematically thwarted visitation. The only solution may be to take the problem to court.
Even if you obtain sanctions and/or Findings of Contempt, these measures will not solve the problem of being denied visitation with your child. Many judges do not award such sanctions unless the parent with primary custody has been forced into court two or three times and has a history of violating court orders. Rarely will a judge order a former spouse to jail for contempt. Thus, while contempt and sanctions can be useful, the larger emphasis should be on defining more clearly-and increasing-custody of children.
Obtaining a Modification of Visitation/Custody
Obtaining modification begins by filing an Order to Show Cause (OSC) for modification with the court. The order is served upon the former spouse. If it is to your advantage, you may wish to concurrently file for a change in child support. You will need to attach a written declaration to your OSC detailing the reasons you seek the modification.
What Justifies a Modification of Visitation/Custody
Prepare for filing the OSC by documenting any problems that you or your child has had with your former spouse or any changes in circumstances. The following are some factors to consider long before seeking any modification:
- Frustration of Visitation: Is your ex-spouse denying you rightful 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?
- Home Environment: Is your child being provided with a stable, healthy home environment? Are there any problems with child abuse, drugs, smoking, or any other conditions in the home? Does your former spouse and his or her new companion behave appropriately when the child is present? Does your child receive proper supervision? Does the child have proper sleeping arrangements? Are other children from a subsequent relationship living in the same household?
- 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 offenses for driving while intoxicated? Does your ex-spouse have a substance abuse problem or smoke in the house? Does the ex-spouse have mental or medical difficulties that impair their ability as a parent?
- Employment: 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 you can devote to your children?
- Geographic Distance: 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 about some of the circumstances that would justify a modification in visitation and/or custody. Try to document as many of these behaviors and circumstances prior to going to court for modification.
Construct a Specific Parenting Plan
When the existing court order is vague regarding which parent has the child during holidays and vacations, it is advisable to seek a more specific “parenting plan.” An example of a specific plan is dividing visitation rights between odd and even years: one parent has rights on odd-numbered years and the other parent on even-numbered years. Your attorney or your local court’s mediation department can help you draft this kind of plan.
A specific parenting plan will help prevent your former spouse from making excuses to deny you visitation. It will also provide you with a definite order that, if violated, will be a good basis for seeking enforcement by way of contempt.