What are your options if your ex is withholding your children?

On Behalf of | Sep 6, 2017 | Firm News

Divorces can result in big, drawn-out messes. It isn’t easy for a former couple to come to terms with the end of their relationship and work together to parent children. Still, agreements must be created and mutual respect and understanding is important to a functional co-parenting relationship. You may have thought that once the divorce was finalized, your issues with visitation and shared custody were over, but now you’re having trouble seeing your children.

Maybe your ex has come up with a range of excuses about why you can’t see your children. Illnesses, school obligations and even sports could get trotted out as reasons why your visitation got canceled or shortened. Other times, your ex may be more direct, telling you that he or she doesn’t intend to let you spend time with your children, even though the courts ordered shared custody and visitation.

Custody and visitation are established by court order

Unless they are set by a prenuptial agreement, custody, child support and visitation are issued via court order in New York. That means that the court’s decision about parenting time and support is legally binding for all parties. When your ex refuses to comply with the terms of your divorce decree by denying shared custody or visitation, he or she is violating the law.

Thankfully, that means you have options for enforcement. Sadly, your options will take some time to impact your situation. You have the right to file a motion to have your custody arrangement enforced. The courts will hear evidence, so it is important that you document all refused, shortened or hostile visitation events.

Even if the children say no, the parents must comply

Court cases about contempt and refusal to comply with custody and visitation orders have previously made it to the New York State Supreme Court. In Labanowski v Labanowski, a 2004 case, the father sued to try to have his visitation rights enforced.

The children were routinely refusing to see their father. When the courts ordered that the mother must deliver them to a neutral location for visitation, they refused to get out of the car or were silent and/or hostile toward their father.

The courts found the mother at fault, because she failed to affirmatively encourage her children to comply with the terms of the court’s visitation ruling. The courts found that the mother played an active and passive role in allowing the children’s aversion to their father to continue.

In the end, the children were placed in foster care, with visitation with their father and supervised visits with their mother. The case was appealed, but it remains an example of how the courts may act if one parent refuses to comply with custody arrangements.