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We have an agreement for a stepped-up visitation agreement.

I have 95% custody and...
We have an agreement for a stepped-up visitation agreement. I have 95% custody and he has 5%. He's had very limited "alone" visitation and it's always been with myself or my family which is ~10% a year. He's spent 1 overnight alone and my son is 2.5. He's demanding that he is going to pick up Mason Friday morning and drop him off Sunday night. His new girlfriend will also be with him. This is too long in my opinion. Our agreement states "father shall provide mother 30 days'advance notice for each visit with visits and overnights determined in good faith based on Mason's comfort level." What rights do I have in this situation? This is too much on Mason and I don't agree with this at all.
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9/25/2017
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 17,970
Experience: Licensed Texas General Practice Attorney
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Thank you for using JustAnswer.

I'm sorry to hear about your situation. So to be clear, he agreed to the 30 day notice requirement, in writing, and a judge signed off on this agreement? What does he say when presented with that 30 day requirement?

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Customer reply replied 6 months ago
a judge signed off on this. It's a 30 day notice for visits and yes he agreed to this. He said he wanted to come out to visit Mason for a weekend and his new girlfriend would be coming. I asked him to put together a schedule and he said he'll be there Friday morning at 8am and will return him Sunday after dinner.
Customer reply replied 6 months ago
I told him that would be too much for Mason and suggested: Friday, have him in the morning, bring him back for a nap, take him after a nap and he'll sleep at home that night. If all goes well, he could take Mason Sat/Sun - with that being an overnight.

You have every right to say "no" specifically due to the fact that this is not within the 30 day notice requirement. You can require strict adherence to the agreement (and you should) because if you don't, every provision could potentially be at risk (because if you give in on this provision but not another, he could even claim "selective enforcement" or something like that. So you can say "no", as you have that right under this agreement. If he has a problem with that, he can take it to the court and tell the judge why he thinks that "30 days" actually means "4 days" or something like that. The judge won't buy it.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

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Customer reply replied 6 months ago
Sorry for the confusion. He did provide ~30 days for his visit but we have been going back and forth on the schedule and he refuses to cooperate. Therefore, he suggested times to visit, I said that works if there is a schedule in place. There isn't a mutal schedule in place. I'm wondering what my rights are in this case.

Does it say that you will come up with a mutual schedule prior to any visitation, etc...?

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Customer reply replied 6 months ago
No. It does say. "at the following minimum times and at such other times as the parties may agree." It provides a vauge stepped up visitation. two hours one day, 2.5 hour increments on the 2nd day, etc... these have been met and he's had over overnight early 2017.

I see. That makes it more complicated. That is, if it's clear that he can have visitation with at least 30 days written notice, but then talks about "other times as the parties may agree", that "may" is permissive, not mandatory. The 30 day requirement, on the other hand, appears to be mandatory. So you would have to have a compelling reason to deny visitation in this situation where he did give you 30 days notice and there's no actual requirement that you come to an agreement.

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Customer reply replied 6 months ago
I don't want to deny visitation. I think that it's not in Mason's best interest that he is gone for a whole weekend alone with his father he hasn't seen that much. Can I put restrictions on this visit?
Customer reply replied 6 months ago
Also, thank you SO much for your help!Not sure how to handle this.

It could be difficult then to win such a case if he were to complain to the judge about this. He could say that he gave 30 days notice, and your response would be that you didn't get a plan in place. But then he would ask where is that required in the agreement. The judge would then look to you to establish why you said "no" after he gave you 30 days notice. Now if you have a good reason that was communicated at the time (such as going on a vacation, etc...) so that he would have 30 days notice that the time wouldn't work, then that would be something that could work for you.

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Customer reply replied 6 months ago
My issue isn't about the visit - it's about the schedule. Don't we have to mutally agree upon this?

Reasonable restrictions depend upon what you can establish as necessary in light of the circumstances. That means that the burden is on him to establish that (for example) only one night is unreasonable, two nights is reasonable, etc... Always go back to the written agreement first, but where there's a question, it's interpreted in light of your discretion.

As far as the schedule, unless there's a different provision in the agreement that says that you will agree, the language said "may". That means that you're not required to.

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Customer reply replied 6 months ago
if I'm reading this correctly, I do not have any rights in saying his proposed schedule is too much and I don't want it to happen?

You do. Again, as the custodial parent, your decisions are presumed reasonable, and he'd have the burden of proof to establish that they're unreasonable. THat's why it's actually to his benefit to come to an arrangement with you so that everything is known and agreed upon. Otherwise, he has the burden to prove that you're acting unreasonable. It's not your burden to prove that you're reasonable.

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Customer reply replied 6 months ago
Oh, that is so nice to hear and makes me feel so much better!!!
Customer reply replied 6 months ago
But he could take me back to court to change if I disagree with his schedule, correct?

Yes. It'd be up to him to prove that you're acting unreasonably, but then you can show that you were trying to come up with a schedule and he wasn't cooperating with you. So you'd probably be in a better place than him in that situation.

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Customer reply replied 6 months ago
Thank you SOOOOOOOO much!!! I have been worried sick.

My pleasure.

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ScottyMacEsq
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