If you are a non-custodial parent and you are not following the court ordered visitation schedule, the custodial parent can eventually go back to court and ask for visitation to be modified or scaled back. What happens next depends on why the non-custodial parent wasn’t following through with the visitation schedule. If there is no valid reason for the non-custodial parent to keep missing visitation, then the visitation schedule is likely to be scaled back significantly.
However, if the non-custodial parent has a legitimate reason why they keep missing visits, such as a job, then the access schedule needs to be adjusted. This often happens in cases where, during the initial proceedings, the lawyer for the non-custodial parent convinces them that they should ask for the most time possible – whether they can actually follow the resulting schedule or not. Then, when the parties get out of court, the non-custodial parent is consequently unable to follow through as a practical matter (e.g., due to work or other obligations). In these cases, the schedule can be easily modified by stipulation to accommodate both parents.
Can Custody Or Visitation In New York Ever Be Enforced Without Having A Final Court Order?
No – in New York, nothing of this nature is enforced without a court order. In some cases, this can include temporary court orders pending more permanent court orders. However, if you have no court order whatsoever, then there is no way you can enforce custody or visitation.
This is one reason why I advise my clients to get some sort of a court order during the custody/visitation organization process. When clients come to me saying they only want a parenting agreement, I advise them its best to incorporate the agreement into a court order. Otherwise, if it’s violated by either parent, it can never be enforced. In fact, the only thing I can do for a client who has a co-parent violating a parenting agreement (without a court order) is file a petition to incorporate the agreement into a court order. Doing so still doesn’t make previous violations of the agreement enforceable. Rather, it just makes it so that subsequent violations can be enforced.
What Are The Options Available To Have A Custody Visitation Order Enforced In New York?
The options depend on the order and the extent of the violations. However, one option in some cases is to go to the Supreme Court on an Order to Show Cause. Otherwise, enforcement of custody or visitation orders are usually done in Family Court. One would file either a Petition (or if it’s a more urgent issue, an Order to Show Cause along with a Petition). If there is a deprivation of access, then one can also file a Writ of Habeas Corpus.
Should Someone Always Take The Matter To Court When One Party Violates A Custody Or Visitation Order?
This depends, once again, on the extent & context of the complaint. If the complaint is around a joint custody issue (a decision that needs to be made together on behalf of the child or the children) that you are just not able to agree on initially, it should not necessarily go straight to the court. There’s often steps you can pursue to resolve these sorts of issues before going to court, such as consulting attorneys, consulting a friend, family member, or clergyman, sitting down with specialists/experts/a social worker, and/or going into mediation.
You can also send a Default Notice Letter to the co-parent, bringing their attention to the fact that you believe they are violating the order and ask that they stop. In some cases, these letters can be effective, especially when they are sent by an attorney. They basically put the person on official notice that if the behavior does not stop, then you will make a contempt filing in court. It also helps in case you want to seek counsel fee awards for continued violations, because they won’t be able to say they didn’t know they were violating anything with their behavior.
For more information on Not Following Court Ordered Visitation, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (347) 797-1188 | (914) 362-3080 today.
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