At the end of a divorce case or a custody proceeding between unmarried parents, the court issues a final order in which one parent (the custodial parent) is usually granted primary custody of the child and the other parent (the non-custodial parent) is granted visitation rights with the child. These visitation rights allow the non-custodial parent to take the child from the custodial parent, have the child for a set period of time and then return the child to the custodial parent. However, after the divorce or custody case is over, the non-custodial parent may find that the custodial parent won't stick to the visitation schedule in the court's final order. The non-custodial parent may find himself or herself more and more often missing out on court-ordered periods of possession of the child because the custodial parent won't turn over the child. If a parent does not comply with the visitation provisions in a court's final order, the other parent can ask the court to punish the non-complying parent. This is known as enforcement.
This article is divided into two parts. Part 1 reviews the steps that should be taken before filing an enforcement case with the court. Part 2 describes the enforcement case itself.
Part 1 - Laying the Groundwork
Before applying to a court for enforcement of visitation, the non-custodial parent should think ahead and lay the groundwork for a successful enforcement case. Throughout the process of laying the groundwork for a successful enforcement case, the non-custodial parent should be working with an attorney for guidance.
The first step in building a successful enforcement case is figuring out exactly what the custodial parent's responsibilities are regarding visitation. For the court to punish the custodial parent for violating visitation provisions, the visitation provisions of the court's final order must be clear, specific and unambiguous on how the custodial parent should have acted. An enforceable visitation provision will state the when (day and time), where and who of the child's pickup and drop off. It is vital for the non-custodial parent to review the court's final order in detail, preferably with an attorney, and know exactly how visitation should work.
Once the non-custodial parent knows exactly how visitation is supposed to work, it's a good idea for the non-custodial parent to mail a letter with tracking to the custodial parent. This letter should clearly state that the non-custodial parent in going to exercise visitation according to the court's order. The letter should also list the when, where and who of picking up and dropping off the child for the upcoming visitation. By doing this, the non-custodial parent is building evidence and also letting the custodial parent know about the importance of the upcoming period of visitation. This letter should be drafted by the non-custodial parent's attorney.
When the time for visitation comes, the non-custodial parent should follow the court's order and show up at the proper place on time for the pickup of the child. The non-custodial parent should show up even if the custodial parent said beforehand that visitation won't be allowed. Otherwise, the custodial parent will be off the hook for violating the visitation provisions of the court's final order because the non-custodial parent wasn't where he/she was supposed to be. By way of example, if visitation is supposed to start with the custodial parent turning over the child to the non-custodial parent at the custodial parent's home at 6:00pm on Friday, then the non-custodial parent should be at the custodial parent's front door at 6:00pm on Friday, knock on the door and wait for at least 15 minutes. If the custodial parent then doesn't turn over the child, the non-custodial parent now has a violation of the court's final order that he/she can take to the court for enforcement.
When the custodial parent doesn't turn over the child in violation of the court's final order, the non-custodial parent should gather proof that he/she was at the proper place and on time to pick up the child. The best form of proof is a credible witness. Ideally, the non-custodial parent should bring someone to witness the failed visitation. The witness should be someone willing to come to court later and testify. If a witness isn't available, the non-custodial parent can also file a police report or get a receipt from a local store with the date, time and location. As soon as possible after the failed visitation, the non-custodial parent should also take notes about the failed visitation, detailing what exactly happened, when and who was present. These forms of evidence can prove important during the enforcement case.
Once the proper groundwork has been laid, the next step will be seeking enforcement of visitation through the court. Part 2 of this article will be posted early next week.