Interference With Custody or Visitation FAQ

Know your legal rights if your child's other parent doesn't cooperate with a legally established custody or visitation arrangement.

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My ex-wife and I share joint legal and physical custody of our kids. But I am the only one who does their laundry, makes sure their homework is done and keeps their activity schedules straight. How can I get her to share equally in these responsibilities?

First, consider whether you think your ex-wife means to dump so much responsibility on you. Perhaps her personal or employment schedule is overwhelming. Before taking legal action, try a heart-to-heart conversation without the children present. Explain that it's hard for you to handle everything and ask for her support. If this doesn't work, write her a polite letter detailing your tasks and suggest what she could do to help. Send the letter certified mail, and give her a reasonable time -- say, two weeks -- to respond. If she doesn't acknowledge your letter or make any changes in her behavior, going to court may be inevitable.

Before taking that step, though, consider asking a mediator to help you and your ex communicate about sharing responsibility for the kids. If that doesn't work either, you will have to ask a judge to order that you and your ex split the parental duties. Sometimes a written order from a judge will spur a lagging parent into action.

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Last summer, my ex-husband took our kids on vacation and didn't tell me where they were going. Can I prevent him from leaving me in the dark this year?

This is a tough one. On the one hand, your ex-husband is free to take the children where he wants, as long as they aren't harmed, unless your custody and visitation arrangement provides otherwise. On the other, it may not be in your children's best interest to be unable to speak with you during this time, especially if an emergency arises.

Ask your ex-husband two months prior to the scheduled vacation where he plans to take the children. It might help if you explain why you want this information, so he doesn't think you are trying to interfere with his plans. If he doesn't provide an answer within a week, put the request in a certified letter. You might want to send a copy of this letter to his lawyer, if he has one. (Usually an attorney will convince an ex-spouse to provide this information, to avoid embarrassment in court later.) Try to make the letter neutral in tone, and avoid displaying your anger -- you may be required to show it to a judge later.

If your ex (or his lawyer) does not respond to your letter, consider filing an "order to show cause" before the vacation. This document would demand that your ex appear in court and explain to the judge why he shouldn't have to tell you where he plans to take the kids. A judge will most likely order your ex to provide the information.

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My ex-husband has physical custody of our daughter and I have visitation every other weekend. He wants to relocate 600 miles away for a better job. If they move, I could only afford to see my child every few months. Can he do this?

That depends on which state's law governs. It's usually the state where your divorce was issued, or it could be the state where the child currently resides. States vary widely when it comes to rules about relocation. Some states allow parents with physical custody to relocate with the child, no matter how much distance is involved. Others favor the rights of the other parent to maintain an ongoing relationship with the child, so they are reluctant to allow such moves. Some courts require the moving parent to have a job, secure a home and select the child's school before moving. And in some instances, the person who wants to move has to show that the move is in good faith, not to frustrate visitation with the other parent.

Before going to court about this issue, try talking to your ex-husband. Explain your financial situation and how it will affect your ability to see your daughter. If he insists on the move, court intervention may be inevitable. At that point, it would probably be worthwhile to consult a family law attorney to learn about the law in your state.

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According to an existing visitation order, the mother of my son is supposed to pick up our little boy on the same day and at the same time every week. She is usually late -- and sometimes she doesn't show up at all. What can I do?

First, it's important to find out why she doesn't stick to the plan. If it's because of employment responsibilities or caring for other children, maybe you simply need to make some changes to your current schedule. If you discuss the situation with her and can't reach a mutually agreeable solution, consider asking a judge to enforce or modify the visitation order. Modifications could be as simple as switching dates and times, or as severe as reducing the length and frequency of visits. Whatever you decide, you might want to note any lateness or no-shows on a calendar and prepare a list in chronological order. This way, if you do go to court, you'll be able to document the severity of the problem. The court is probably going to be more interested in your child's disappointment than your inconvenience.

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My ex-husband has visitation with my two-month-old baby one night each week. He lives in a studio and doesn't have any baby accessories. Do I have to let him take my baby overnight?

Because a judge has already ordered overnight visitation, you should comply. You can, of course, send the baby with diapers, formula, changes of clothes and so forth. But you should also firmly suggest to your ex that he purchase what the baby needs. Of course, unless the court order says he must have specific items prior to taking the child overnight, he's not required by law to get them. You can, however, request that the court modify the existing order to include the purchase of these items. As long as you are reasonable, a judge will most likely insist that the father buy a crib, diapers, bottles, formula and other such necessary items.

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I've had physical custody of my son since his birth. Now that he's a teenager, he wants to live with his father, who has promised him a car. What can I do?

First, you should consider why you object to the switch and think about whether the change would actually be good for your son. If so, let him go.

If, after some serious thought, you still feel it would be in your son's best interest to remain with you, you can refuse to allow him to live with his father. But that may prompt your ex-husband to petition the court for a change in custody. Once kids hit the teen years, judges will listen to their preferences. That doesn't mean a custody change is automatic, but it does mean that the judge will give weight to your son's feelings and reasons for wanting to live with his father. Keep in mind that arguing and speaking ill of your ex may cause a judge to agree that a change would be best.

Of course, if the father is a danger to your son, you should make this clear to both your son and the court. But, if you want to avoid a nasty court battle, maybe you, your son and his father can agree to joint physical custody and/or a visitation schedule that has your son spending more time with his father.

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My ex-wife and I share joint legal custody of our child. She fights with me about every decision we make regarding our daughter's education, religious upbringing and medical care. Do I have to keep her in the loop?

Sharing joint legal custody with an ex-partner can be difficult, but you would be violating the court's order if you didn't involve your ex-wife in major decisions affecting your child. If you do stop including your ex in these decisions, she could take you to court. A judge may order both of you to work it out, or the judge might give sole legal custody to just one of you -- a result that could prove harmful to all involved.

For everyone's sake, it's usually best to reach an agreement without going to court. To do this, try to understand why your ex is fighting with you. For example, if you have physical custody, maybe she is envious of the time you spend with your daughter and is trying to assert her rights. In that case, perhaps a more generous visitation schedule would help. If you need help improving your communication, you could also consider seeing a counselor or a mediator.

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My kids live with my ex-wife. I usually send my child support check on time. But I'm thinking of withholding it as a bargaining chip so I can see my kids more often. Is this a good idea?

Definitely not. Visitation and child support are separate legal matters, and courts frown on parents trying to use money as leverage for visitation, or vice versa. If you're not happy with your visitation schedule, first try calmly discussing this with your ex. If she insists on sticking with the court-ordered dates, you might consider asking a judge to increase the amount of visitation. You might even want to think about asking for joint physical custody if you and your ex live close to one another. But beware: Courts won't order this unless it's clear that the children won't suffer unnecessarily and the parents can work as a team.

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I have sole physical custody of our children. Several times my ex has not returned the kids on time after taking them for a visit, and I'm scared one day he won't return them at all. What are my rights as the custodial parent?

If appropriate, try to discuss punctuality with the other parent. It may be that will clear up any misunderstandings.

In most states, taking a child from his or her parent with the intent to interfere with that parent's physical custody of the child (even if the taker also has custody rights) is both a crime and a violation of civil law. And it almost always violates visitation and custody orders. Usually, the parent deprived of custody can get help from the police to have the child returned and may sue the taker for damages.

The offender may also be charged with kidnapping. In many places, if the parent takes the child out of state, the crime becomes a felony. Of course, there are exceptions. Those include taking a child out of state in order to prevent imminent physical harm to the taker or the child. Another exception is taking a child out of state when requesting custody in court, so long as the police are notified of the child's location.

If your ex continues to be late, consider asking the court to reinforce the drop-off times. If your ex threatens not to return the children, and you believe he or she is serious, you can file an what's called an "order to show cause" in court. This will get you an emergency hearing to discuss this issue and any possible remedies, like supervised visitation or no visitation pending a court evaluation.

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Copyright 2004 Nolo