PART 1 – WHY INACTION IS A RISK.
The danger of inaction is one of the most pervasive problems in family law practice. Let me give you a hypothetical to illustrate the nature of this problem and why it is so dangerous. Suppose you and your wife have been living apart, separated for years. At the beginning of your separation, you asked to see your kids often, but your wife would not let you see them because she was angry about the separation. Rather than get into yet another fight, you let it go, thinking that once everything settles, she will ultimately let you resume contact with the kids. A month becomes two months, two months become six months, six months becomes a year and so on. Before you know it, it has been two years since you last saw your children. Throughout that time period, you made repeated requests to see the kids only to be rebuffed by your wife. At last, you’ve had enough, and you decide to file for divorce so that you can get court ordered visitation that does not depend on your wife’s consent. When you appear for a temporary order hearing, or a final hearing, your wife’s lawyer argues that you don’t really care about your kids because you haven’t seen them for two years. You counter that the only reason you did not see them is because your wife withheld them from you. Your wife’s lawyer then asks you why you did not file a case to enforce your visitation rights. Your wife’s lawyer further claims that any request you made to see your kids was insincere because you never followed through. The judge doesn’t know who to believe. However, one fact is not in dispute: you have not seen your kids for two years. On that fact alone, it is probable that a judge will award you less visitation than what you otherwise would have been awarded. Your kids have built a routine and familiarity living in mother’s home without their dad. Judges don’t often want to change the status quo just because a parent, after a long absence, has a change of heart. The judge reasons that you willfully alienated yourself from the kids because you never took any action to enforce your right to visitation.
Believe me, this happens more than you would think. It is a pet peeve of mine that people make these arguments; but people keep making them all the same. I personally do not believe that someone’s failure to initiate a contested custody case, in and of itself, demonstrates that the person does not care about his/her children. However, it is a common argument, often done successfully. The danger of inaction is that your failure to act will be perceived as apathy toward being an influence in your kids’ lives.
PART 2 – YOU SHOULD BE SELFISH ABOUT GIVING UP TIME WITH YOUR KIDS WITHOUT RECEIVING MAKE UP TIME.
Consider this less dramatic hypothetical: you get a temporary order allowing you to see your kids every weekend. A day before your weekend visitation, the mother asks you to relinquish your visitation for that weekend because the kids have sporting activities or relatives in town. You think to yourself that it will be good if you can show that you are a team player, so you agree that you will not have visitation that weekend. This same scenario becomes a repeating pattern. Before you know it, you agreed not to exercise seven out of 10 weekends where visitation was available. At trial, the mother’s lawyer argues that your failure to exercise the majority of time available to you shows that you put yourself and your own desires above being a father. You respond, explaining that you were just trying to be flexible. The judge agrees with the mother’s lawyer, and reduces your visitation to a time commitment more in keeping with the visitation you actually exercise.
Of course, being a team player and being flexible is an important attribute for a healthy co-parenting relationship. However, if the pattern becomes you giving time but not getting any time back, this will be a problem. While we all aspire to be unselfish people, the time that you have with your kids is something you should be adamant about keeping. At the very least, if you give up time, you should insist on making up that time as part of your agreement. There should be a specific plan for how you will make up the time before you reach an agreement on giving up time.
PART 3 – SPENDING TIME WITH YOUR KIDS IS MORE IMPORTANT THAN TRYING TO SAVE YOUR RELATIONSHIP.
What do you do if you’re in a situation like the first hypothetical? If your case has not been filed, then you need to file a case. Of course, some men find this difficult because filing a case signals the end of the relationship. In my experience, that isn’t necessarily the case. Lots of times people will get back together even after they divorce, and then ask the judge to nullify the divorce (a right under Oklahoma law). But let’s assume that filing a case does fully and finally end any hope you had at reconciliation. While I can understand the catastrophic heartache that comes with the end of marriage or other romantic relationships, your children have to come first. You have to ask yourself, is someone who impairs your ability to be in your children’s lives and spend time with them a good partner anyway? I know that I’m oversimplifying, but I think most of the time it really is that simple. If there is no reason that you can’t safely be around your kids (you don’t have drug addiction or domestic abuse problems etc.) then you should be adamant about your rights. There’s an old adage that “justice favors the vigilance.” I personally believe this to be true with regard to child custody rights.
PART 4 – OPTIONS FOR ENFORCING CUSTODY ORDERS
Suppose you have a case that is is pending or already completed. In this situation, there is typically a visitation order issued by the court. If you have a visitation order, and the other parent refuses to allow or facilitate visitation, there are a few options you can utilize to enforce your rights.
First is what we call a Motion to Enforce Visitation. The good part about this motion is it has a relatively short lifespan – usually not more than 20 days from the filing date to the date of your hearing. If the court determines that your right to visitation was impaired or unduly restricted by the other parent, then you can get make up time for the time you missed, and potentially you can recover your costs and attorney fees for the case from the other parent.
Another option is seeking contempt charges. When a parent violates a court-ordered visitation schedule, we typically call this indirect civil contempt of court. Indirect contempt of court is a violation of the court’s orders which occurs outside of the courthouse, or outside the presence of the judge. Contempt, or violating a court order, is a crime. Someone found guilty of contempt could potentially end up in jail or pay fines. Because contempt is a crime, constitutional rights, such as a trial by jury, will attach. There is also a necessity of having the defendant (contemnor) arraigned. This adds additional time to the life of the contempt case. If there is a jury trial, that time increases exponentially. Even if the contemnor agrees to have a trial before the judge (a bench trial), you are still probably looking at a minimum of a few months before the trial takes place. The benefit of contempt over a simple motion to enforce is the prospect of jail time is a very good motivator to change bad behavior. Additionally, all the rights of time restitution and attorney fees etc. would typically be available in any contempt case the same as a motion to enforce.
My explanation of procedural mechanisms to address withholding of visitation is only a cursory explanation. If you have been having trouble getting visits, you need to speak with a lawyer right away. The process is complicated, and it will be very difficult for someone to prosecute a motion to enforce or content case by themselves without a lawyer. Furthermore, as explained above, waiting can be very dangerous to your case. There is a price for inaction which no father should ever allow himself willingly to pay.