How to Protect Your Custodial Rights

By Staff Writer

Any parent who has gone through a divorce, separation or break-up knows full well that the issue child custody - of when they can spend time with their children - is not always resolved with the issuance of a Court Order or entering into an Agreement with the other parent. All too often, a parent’s time with the children is frustrated by the other parent, who, for whatever reason, fails and/or refuses to produce the children for custodial time. This behavior can have devastating effects on both the parent who has been denied access and his or her children.

By the time access is denied a parent, he or she may have little recourse. Even if the Courts are open at the time the other parent fails to produce the children, there is no guarantee that the necessary paperwork to file a Violation can be prepared immediately or that a Judge will be available to address the matter promptly. Anyone who has been through the Court system is aware that, from the time an application is filed, it may take weeks before the parties are actually scheduled to appear in Court to have the child custody issue resolved. During that time period, the other parent may continue to withhold custodial access.

This is not to say that there are not steps which you can take to protect yourself. As a general rule, avoid informal agreements with the other parent about your custodial time. You must insist that the terms of your agreement be formalized either in a written Court Order or an enforceable written Separation and Settlement Agreement. Without such formality, a Court will not be able to hold the other parent in violation of your informal agreement.

You should also ensure that the Order or Separation and Settlement Agreement contains as many specifics as possible. Avoid at all costs language that you will be entitled to time with the children as you and the other parent "shall mutually agree." This language provides you with no protections and, in the event of a disagreement, you will be left with no recourse other than to petition the Court for a specific schedule of access.

The Order or Separation and Settlement Agreement should provide specifics for both the days on which you will be entitled to access and the times when the children will be with you. For example, if you have agreed to alternate weekends with the other parent, the Order or Agreement should specify how a weekend is defined, such as from Friday until Sunday, and the times at which the children will be exchanged. To avoid confusion or disagreement, and the possible risk of missed custodial time, you should also provide specifics for how the children will be exchanged. If the other parent will be dropping the children off at your home at 5:00 p.m. on Friday, and you will be returning them at 5:00 p.m. on Sunday, specify these arrangements in the Order or Agreement. Remember, so long as there is no disagreement, you and the other parent can always agree upon alternate arrangements. The specific schedule outlined in the Order of Agreement will provide you with protections in the event that you do disagree with the other parent.

In structuring a custodial schedule, do not think only of your "regular" weekly access. Contemplate in advance other times during the year when you would like to spend time with the children. Holiday, birthdays, school breaks, vacation time and other special days should also be addressed in as much detail as possible.

In the event that the other parent threatens to withhold access, or if you anticipate such a problem, try to document the situation. For example, if you have exchanged e-mails or other written communications with the other parent in which he or she threatens to deprive you of access to the children, save the communications. If the threat is made verbally, make a note of exactly what was said and when the threat was made. Let your attorney know as soon as a threat is made so that, if necessary, you will be ready to quickly go into Court to enforce the terms of your Order or Agreement. By having documentation of the situation, you will also be better prepared to present your case to the Court.