FindLaw KnowledgeBasePublished: 2009-11-10
Child visitation schedules entered upon a divorce define the rights of the child to visitation with the non-custodial parent. As a practical matter, however, divorced couples need to be flexible when handling visitation issues. Unexpected work requirements, spontaneous child activities, illness, vacations and other demands will often leave one or both spouses concluding that strict adherence to the established visitation schedule is too rigid.
The visitation schedule might be thought of as a game plan, and one that needs to be somewhat flexible in order to accommodate unanticipated demands. Divorced spouses should work together whenever possible to ensure that the spirit, if not the letter of the visitation arrangement is upheld. This may mean on occasion changing the visitation day, moving the visitation hours, deferring visitation to accommodate a vacation or altering the visitation terms to permit visitation reasonably consistent with the schedule's intent to occur.
When one spouse consistently ignores the visitation schedule for frivolous reasons, however, problems can develop not only between the ex-spouses, but also between parent and the child. A child whose parent stands him up or refuses to permit visitation for minor schedule deviations suffers. Parents should keep this foremost in their minds when dealing with visitation irregularities. The key to resolving visitation schedule issues most often is communication between the ex-spouses.
When following the visitation schedule becomes the exception rather than the rule, to one spouse's discontent, there may be a serious underlying problem that needs to be addressed.
Dealing with an Inconsistent Ex-Spouse
Whether it's disorganization, conflicting priorities or antagonism toward an ex-spouse that causes persistent violation of the visitation schedule, the behavior can be dealt with similarly.
The first step is to make sure the spouse violating the visitation agreement terms is aware of the problem and the reason it creates concern. The reason may be practical, inconveniencing the other parent or precluding the scheduling of other child activities, or emotional - the child worries about abandonment. Clarify the problem and agree, if possible, on a solution.
If the non-custodial spouse is the one violating the visitation schedule, the spouses might agree that the non-custodial spouse will call if running late, will not cancel at the last moment barring life-threatening emergency, will not expect to reschedule for a no-show without adequate notice or cause and will assume any burden resulting from persistent lateness or no shows, including visiting time loss, if the custodial parent decides not to have children ready and waiting for a persistently late or absent parent. When the non-custodial parent chooses not to show up for scheduled visitation or cancels a planned activity with the child, the non-custodial parent should explain the decision to the child.
Where the problem is not returning the children on time, the parties might agree that any excess lateness will be deducted from the next visit, leaving room for minor lateness due to traffic, tantrums or other no-fault causes.
If it is the custodial parent who regularly fails to have the children ready for scheduled visits, the same approach applies as far as explaining the problem and working together to forge a solution. The non-custodial parent might ask the custodial parent to agree to making up the lost time by extending the visit or rescheduling it. If there is cause for postponing a scheduled visit (the child is ill, for example), the custodial parent should give the non-custodial parent reasonable notice.
Dealing with an Inflexible Ex-Spouse
When one of the parties is inflexible about changes in the visitation schedule, it is probably advantageous to adhere to the letter of the schedule as much as possible.
The ex-spouses may agree to a pick-up and drop-off window rather than an exact time to permit some flexibility while maintaining boundaries. In most situations, families can accommodate a pick-up and drop-off within a half-hour window, as long as the more flexible party recognizes the earliest pick-up point and latest drop-off point as absolutes.
Instead of a specific visitation day, it may work to schedule two alternate days with communication at the start of the week to establish which day will be the visitation day that week. This type of arrangement may be beneficial when the ex-spouses have varying work schedules and the inflexible spouse is uncomfortable with open-endedness.
Dealing with an Irresponsible Ex-Spouse
When an ex-spouse is truly irresponsible, when sincere efforts have failed to resolve the non-adherence to the visitation schedule, there may come a time when the custodial parent wants to eliminate visitation or the parent with visitation may want to petition the court for relief.
As difficult as it may be in these circumstances, both parents should keep the child's interests at heart. A child who is repeatedly disappointed by a no-show parent may be better off without having the promise of seeing that parent dangled and pulled away each week, but that does not mean that the child will fare better with no contact with the non-custodial parent. Similarly, the child denied visitation by the custodial parent for persistent minor infractions of the visitation agreement by the non-custodial parent may not be well-served by a change in custody arrangements.
When a non-custodial parent fails to show repeatedly, one solution might be an agreement that the parents will talk prior to the scheduled visit to clarify if the visit will take place or not. This will enable the custodial parent to prepare the child for a visit only when one is to take place. If the non-custodial parent still fails to show, the custodial parent may eventually decide to seek court intervention in altering or eliminating the visitation schedule.
Seeking Court Intervention
Invoking the power of the court should be a last resort in resolving visitation disputes. When the parents have tried and failed to resolve the visitation issues, the parent considering invoking the court's power should maintain a record of the times and dates and means by which the visitation order was violated. That parent should also record the child's reactions and the efforts made to resolve the problem. These efforts should take place over an extended time period, giving them an optimal opportunity to flourish.
In the absence of a court-ordered modification of the visitation schedule, the custodial parent should be prepared to facilitate visitation at the scheduled time whenever the non-custodial parent desires it. If the non-custodial regularly fails to show up, the custodial parent should notify the non-custodial parent if other plans are in place for the scheduled visitation time and present the option of the non-custodial parent supervising the planned activity or picking the child up from the planned activity.
There is a practical approach for the custodial parent's handling of persistent no-shows. This includes providing only factual information, not opinion, to the child about the no-show parent's absence, empathizing with the child's disappointment and encouraging the child to discuss the reasons for and feelings about the no-show with the non-custodial parent. Another suggestion for dealing with the no-show is to have a simple back-up plan for the child to ameliorate the disappointment. Expecting a non-custodial parent who cancels a planned visitation to directly tell the child of the cancellation is preferable to the custodial parent acting as a go-between.
Remembering that the child deserves two parents, as imperfect as they may be, and that visitation is a right that belongs to the child may help divorced spouses to put their differences aside in resolving visitation issues. Courts are loathe to cut one parent out of a child's life completely, even if that parent is demonstrably irresponsible or intractable.