I know I'm asking mamas and not lawyers but I'm curious if anyone has had experience with this. My DH has a visitation agreement set up with his ex through the courts that spells out the specifics for each visit in his DS's state through the end of the year and then we can start bringing him home (9 hours away) for a week every other month. We have worked long and hard to get this and not because DH is a bad parent but because of control issues that his ex has only. There is absolutely NO reason for him not to have liberal access to his son, just to preface this. So. We have followed every single visitation requirement to the "T" up until the November visit. DH thought that the agreement stated that we had DSS the three day weekend after Thanksgiving and let his ex know by e-mail that week that we would be picking up DSS on Friday for the weekend. Long story short, he was supposed to give two weeks notice of whether it would be the weekend before or the weekend after Thanksgiving so because of this mistake on his part his ex refused to let us have DSS for our visit. We had already paid for a hotel and everything and b/c it was through Priceline it was not refundable. In the agreement, for visitation through the end of the year, it gives an outline of how and when each visit should go and at the end of each of those paragraphs it states that the "visitation shall take place provided visitation has been exercised as set forth herein" then it proceeds to the next visit, and so on. DH's ex is refusing to allow us the visit we are supposed to get after Xmas and will only allow us a partial visit (which is equivalent to the one missed) b/c of this miscommunication last month.
My question is this: Is she legally allowed to do this without going through the proper channels through the court system? I mean, the agreement doesn't spell out what happens if there is an issue like what we're having so I don't know if it's automatic through the courts that she's just allowed to do this or if she has to take the matter to the courts and let them make a decision. Anyone BTDT? We're supposed to have him in our hometown starting in January and it's going to CRUSH DH if we can't celebrate DSS's birthday with our extended family, who have only seen him ONCE in the past 2 1/2 years because of her. And for the record, we are doing this on our own, without an attorney...at least up until this point. We're looking at getting an attorney if we can figure out how to afford it.
More info (history of DH and situation) is in the original thread that I started in Single Parenting: http://www.mothering.com/community/forum/thread/1286423/question-regarding-visitation
(I am a mom, and a lawyer, but this is friendly, not legal advice.)
States vary, but generally speaking, look at the language of the visitation agreement itself. Some are self-executing ("If Father does X, Mother will have the right to do Y") and some require court involvement ("if Mother does Z, Father will have the right to petition the court to do X"). So, to answer your question--the mom may have the (technical) right to restrict the visitation, though the court may not look favorably on her doing that simply because of a technical error.
And I'm not sure messing up one month is supposed to mess up months that follow--many agreement say things like, "if Dad does not call within 48 hours of the anticipated visitation start time to arrange for travel, the visitation will not occur" or "Dad will wait at the transfer point for 15 minutes, and if Mom doesn't show up or call, Mom will not have visitation" but it only affects that particular week, not everything going forward. The ones that do specify that visitation, going forward, can be affected are generally there to prevent an uninvolved parent from disappearing for months then showing up on Christmas Eve and taking the child because it's "their time."
I hope you are able to get a lawyer to help you--this "agreement" is in need of revision at best.
Spouse (the political geek) * Stepdaughter (the artist) * and introducing...the Baby (um, he's a baby? He likes shiny things).
Thanks for responding! :O) The language in the agreement is completely vague, with no if A does X, B can do Y type scenario at all. This: "This visitation shall take place in City, State provided visitation has been exercised as set forth herein" is at the end of each visit spelled out in the agreement through the end of this year. It doesn't say exactly what happens over a mistake/miscommunication or who can restrict or change visitation in such case. Someone suggested ex parte to make sure we get the Christmas visitation as spelled out in the agreement but I'm not sure if that can be done by phone/between states.
I appreciate your input!
If I were in your circumstances, I would definitely consult a lawyer. Many lawyers have free initial consults so maybe take advantage of that to see if you even need to hire a lawyer. It sounds very vague, and spelled out in legal language, so definitely consult a lawyer. IF I were reading that, I would assume that it was stating that the visitation (that specific ONE visit) would happen if everything stated for that visit had been followed, i.e. the plans were made for it to occur in that state with proper warning in advance and whatever else was required for the thanksgiving visit. I would NOT assume it meant that every visit had to be done as laid out or you loose all other visits. But definitely speak with a lawyer.
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