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#518 Enforcing visitation rights

mp3 #518 How do you Enforce Visitation Rights? (mp3 file)


Family Law matters are very complex. Many who try to handle these matters on their own quickly find themselves overwhelmed and out of favor with the courts. Often times costs are cited as the reason for self representation. However, most people with assets and retirement plans stand to lose significant amounts of money, or worse, lose custody of their children if they are not properly represented. Continue here to be referred to an experienced and insured Family Law attorney:

 

Until a court order is obtained, both a father and a mother generally have equal rights to physical custody and visitation with their children, whether the parents were married to each other or not. This situation may be confusing and difficult, so one of the first things you should do when dissolving your marriage or breaking up with the "significant other" parent of your children is to obtain a temporary court order regarding custody and visitation. If you do not get to court for some reason, you should at least make a written agreement between yourselves or with the help of a lawyer; although such an agreement cannot be enforced like a court order if there are problems.

To get a court order for custody and visitation, you must first file a court case. There are several common types of cases you could file. A domestic violence case is used if the other parent has used violence, whether the parents are married to each other or not. You could file a dissolution of marriage or a legal separation if you are married to your children's other parent. If you were not married to your children's other parent, you would usually file a paternity action against him or her.

Once a case has been filed, you must get a temporary or permanent court order for visitation. The order must be written specifically enough to be easily understood and enforced. For example, orders which simply give you "reasonable visitation" are almost useless if you have problems visiting your children, and should be modified. Once your former spouse or significant other has been served with the order, if he or she refuses to allow court ordered visits, you may then take legal steps to enforce the visitation awarded to you.

If you are experiencing serious, ongoing visitation problems, you should keep detailed notes of everything that happens concerning visitation, including events, conversations, phone calls, actions on your court case, contacts with law enforcement and similar matters. Your notes will help you prove your visitation problems to your attorney, to the judge, or to law enforcement, if necessary.

A custodial parent may not deny you visitation just because you are behind in child support. Child support and visitation are two separate issues. Being able to prove you are not getting visitation just because your support is not current should help you if you file contempt charges. On the other hand, the custodial parent could file a contempt against you for failure to pay child support. Since California has a firm set of child support guidelines, it is relatively easy to find out how much monthly support could be ordered in a given financial situation. Paying up back support or getting support adjusted to reflect a change of economic circumstances often helps resolve visitation problems.

Just because the custodial parent moves the children from California to reside permanently in another state is not usually considered a denial of visitation. If the court has not made an order forbidding the removal of the children from California, the custodial parent may permanently remove the children to another state. You should maintain frequent contact with the children by phone and mail, and should exercise as much of your court-ordered visitation as you can. You should modify your visitation order if you find out about the move beforehand. If the move catches you by surprise, get back to court as soon as possible after you learn the children were moved. You should ask the court to give you longer, less frequent periods of visitation with your children, to allocate transportation costs, and to spell out other details because of the longer distances involved in transporting the children back and forth.

The other parent may sign a stipulated modification order which can be sent to court to be signed by a judge and filed as an official order, without the cost and time involved in a formal hearing. If you and the custodial parent can't agree on visitation modifications, you must file an "order to show cause for modification" in court to change or modify your visitation order. You must serve the other parent with your modification papers. Once you get your visitation modifications and serve the other parent with the new orders, he or she must abide by them.

If your children have been removed from California in violation of a specific court order and you know where the children and the custodial parent are living, you may try to have the custodial parent held in contempt.

To enforce any court order, including a visitation order, you can file what is called an "order to show cause for contempt" to have the parent who has primary physical custody held in contempt of court for not obeying the order or for not allowing you the visitation rights which the court has ordered. The other parent must be personally served with your contempt papers. If the custodial parent is found "in contempt", then he or she may be ordered either to allow visitation or face the possibility of being sentenced to jail and fined. In serious cases, he or she may actually receive a sentence which could include up to 5 days in jail plus a fine of up to $1,000 per violation.

To have the custodial parent found "in contempt", you must prove: 1) that the order was valid and in effect; 2) that the other parent had knowledge of the order; 3) that he or she knowingly and willfully refused to obey the order or to give visitation to you; and 4) that he or she had the ability to comply with the order.

If the custodial parent can show that he or she has made reasonable efforts to give you visitation, then that parent will probably not be found in contempt. It is very hard to prove a person is in contempt because you must prove each element "beyond a reasonable doubt". An action for contempt of court is considered quasi-criminal in nature because it is punishable by time in jail. In many courts, the defendant in a contempt proceeding may get a court-appointed attorney without paying for it.

Remember that sometimes there are very good reasons why the other parent denies your visitation rights on a specific occasion. Bringing a contempt action or filing a police report may reawaken emotional tensions from the past for both you and the children, and may waste valuable court and law enforcement time and resources, particularly if the visitation violations are relatively minor.

California law now requires that disputed custody and visitation matters be referred to a court-approved mediator. The mediator will try to reduce bad feelings between you and the other parent and help you both to agree on a plan that will insure close and continuing contact between your children and both parents. You may seek the help of a mediator, however, even if you have not filed a court action. Just telephone your county conciliation office to make an appointment.

Both the "order to show cause for contempt", and the "order to show cause for modification", often require the help of an attorney. You usually have to pay for your own attorney's fees and expenses, although sometimes the court may order the other parent to pay all or part of your attorney's fees and expenses depending upon your relative financial positions. You may also be able to make the other parent pay your reasonable attorney's fees and court costs if the other parent acts in bad faith to delay or frustrate a settlement of the issues in your request to the court or to deny you your visitation rights.

As a last resort, if you continue to have serious problems in getting your visitation after the court has found the custodial parent in contempt more than once, you should make a report to your local law enforcement agency. Of course, you should immediately make a report to law enforcement if the custodial parent and your children have disappeared. A law enforcement report should also be made if the children have been taken to another state and are being detained in violation of your visitation rights by a custodial parent who pays no attention to your contempt actions here in California.

California law provides that once you have been awarded visitation, if the other parent detains or conceals the children with the intent to deny your visitation rights, he or she could be charged with a misdemeanor punishable by up to one year in the county jail plus a fine of up to $1,000. The same crime could be filed as a felony in very serious cases, punishable by a maximum sentence in state prison of up to three years plus a fine of up to $10,000.

After reviewing a law enforcement agency's report, if the district attorney's office decides that the conduct of the other parent is criminal and serious enough to warrant action, it may file a criminal complaint. However, if the children are not being detained in another state by a custodial parent who refuses to cooperate in allowing you visitation, or the children have not disappeared, you may be required to try to solve your own visitation problems with the contempt process or by modifying your court orders before the district attorney will get involved.

The best way to raise children after the breakup of a relationship is with a spirit of cooperation and understanding. Although you and the other parent may not be able to live together or agree on some issues, the law requires you to always consider the best interests of the children in your decisions and actions affecting your children.

In fact, California law makes it public policy to assure that children get frequent and continuing contact with both parents so both parents can share in raising the children, subject to a few limitations in unusual cases when the parents cannot function within general guidelines with flexibility and consideration for each other, a court must often set out stricter visitation or custody rules which limit the discretion of both parents. The ultimate set of rules imposed on a non-cooperative parent would be during a three year state prison sentence and the four years of parole which could follow if such a parent were convicted of a felony for detaining or concealing a child from the other parent.

On the other hand, parents who cooperate in raising children after a breakup can funnel the time and money that would otherwise be spent on extensive battles over visitation into activities that will benefit their children and maximize the discretion the parents have to guide their children towards happy, productive lives.

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