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Amber E.
Amber E., Family Law Attorney
Category: Family Law
Satisfied Customers: 1482
Experience:  Experienced practitioner in family law, including divorce, custody, and domestic violence cases.
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I have physical custody of my 4 year old son (), and shared

Customer Question

Hi, I have physical custody of my 4 year old son (B), and shared legal custody. His father and I went to court when my son was only a few months old. We agreed that he will have B at a set time on Sundays, to be returned to me the next day. That was all that his father wanted.
Since then, and still now, B's father has never consistently showed up to pick up our son. He says he will come at a certain time, I have my son ready to go, but he ends up calling hours later saying he isn't coming to pick B up anymore. Within the last few months he has doing this way more often. I have it recorded that he has only shown up twice in the last three months. When he does pick up B, he ALWAYS arrives at least an hour late.
For the first three years of my son's life, I had been trying to help his father have a good relationship with B as my son cries at the very sight of his father. I have asked time and time again to put some effort into calling B so that his presence doesn't seem so sporadic for B. He never calls to speak to B at all. I have asked him to be more consistent with picking B up, so that it will get easier for B to be with his father, so that he doesn't have to cry whenever he sees him. Still no consistency. He comes around only when it's convenient for him. He has given me excuses such as he's hanging out with friends instead, or he is going to the flea market instead, so he will come around "next week."
I have given up on trying to help his father build a good relationship with my son. It's been 3+ years and nothing has changed. B still cries at the sight of him, cries begging me to let him stay with me. B is afraid of going to parks because he is afraid his father will be there to take him away. It breaks my heart to see the fear in his eyes and hear the tremble in his voice each and every time his father does come around.
I have to admit, his father and I do not have a good relationship for obvious reasons, and we do argue from time to time. He can not call me at 9am on Sunday morning stating he is coming for B at 10, only to call me back at 12pm to say "nah, next time" and expect me not to call him out on it. 1. He has wasted our time sitting around at home waiting for him to arrive when we could be out enjoying our day together. 2. It is very inconsiderate to say he is coming at a certain time, but calls hours AFTER x time to say he is no longer coming anymore. 3. I plan every weekend around the fact that his father MAY come around that weekend. I deny social events with our friends (mine and B's) just in case his father actually does show up. It's not cool. I approach him calmly, but he will become defensive and will yell and curse at me. One time, he became so angry towards me in front of B that I no longer allowed my son to go with him. While walking away with B, his father laughed in both our faces and said, "it's cool, that's why I have a new baby," and waved us goodbye. (Him and his fiancé recently gave birth to a little boy. I found out through pictures on social media. He has never even told B that he has a brother.) This makes me believe, on top of never making it a priority to be with B, that he does not care for him at all.
Now I have decided enough is enough. If he can't be consistent and constantly wastes and disrespects our time, I am not allowing him to take B anymore. He does not help out financially either, and believes he does not need to. That is fine, and I have told him that. We spoke on the phone last weekend, and I have asked him to leave us alone for all of the reasons I have typed above. And I have recorded, with his knowledge and him allowing me to record our conversation, our agreement that he will no longer pick up B. Out of his mouth said that he will leave us alone and that if I ever need anything to give him a call. We wished each other the best and said goodbye.
I'm sorry for the long back story, but now here are my questions:
1. Court orders that he is to have B every Sunday until Monday evening, and I will be held in contempt if I do not allow B to be with his father on said days. Why would it be considered wrong for me not to allow visitation on Sundays but it's okay for him to not be around on Sundays? Are there no consequences on his part when he decides not to spend his Sundays with B?
2. Since we made a recorded agreement that he will stay out of our lives, can I use that in court if he ever decided that he will take me in for not allowing Sunday pickups?
3. And if I decided to take him to court again, will anything that I have written today help me reduce his father's right to visitation?
I am a mother who desperately wanted my child to have an as healthy as possible relationship with his father, but after years of no relationship being built and realizing that his father is causing B more harm than good, I give up. I believe I am doing what's best for B, would the court see it too?
Submitted: 1 year ago.
Category: Family Law
Expert:  Amber E. replied 1 year ago.

Contempt is generally defined as the intentional and willful failure to comply with a court order without good cause. What this means is that, in custody cases, a parent can be held in contempt of court for refusing to allow another parent visitation, but also for refusing to exercise visitation. So, to answer the first question, it is not okay for a parent to simply not exercise court-ordered visits for no good reason and yes there are consequences. In cases where one parent is consistently refusing to exercise his visits, it is not unusual for the custodial parent to return to court and seek a modification to reduce, suspend, or terminate visitation entirely. Custodial parents are often successful when the other parent cannot explain to the court WHY they haven't complied. The occasional family emergency, flat tire, work conflict is acceptable, but delays and absences that are without any justification are seldom tolerated. To answer the second question, parties are allowed to make alternate agreements as to custody and visitation that they can be held to at trial, but best practice is to have those agreements reduced to writing and filed with the court. Recordings, text messages, social media conversations, even written and notarized documents that haven't been filed are all often good evidence or support for a change, but not always determinative. The court often will consider such information as evidence, but it won't necessarily make or break a case, that would depend greatly on the circumstances and what the other party has to say about how that agreement came to be. Lastly, while it is true that a history of failing to comply with a visitation order does in fact help a custodial parent's case to reduce the other parent's visitation, it is impossible to predict with any certainty what a court will actually do. In some cases, judges prefer to give warnings rather than immediately reducing visitation; other judges have a zero tolerance policy when it comes to their orders and they expect a parent to use his visits or lose them. But, considering that the court's primary consideration is the best interest of the child, a court isn't likely to continue to afford an uninterested parent multiple chances to be part of his child's life.

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