Originally posted November 22, 2014

Implementing or exercising a parent’s visitation time with their child or children (also called parenting time or physical custody) can be a contentious and frustrating situation depending upon the attitudes of the parents (and sometimes the child), or due to the lack of clarity in the terms of the court order setting forth the schedule for each parent to be with, and responsible for, the child. Issues with the parenting time schedule and order provisions are often heightened during holidays, and the Thanksgiving through New Year’s holiday season is probably the peak period for parenting time issues.

The legal system has limited options in dealing with the parent who blatantly refuses to follow the terms of the court orders and the parenting time schedule, such as imposing supervised visitation or precluding visitation entirely. The more common issues are ones of alternate interpretations of the court order, schedule, and the rights and responsibilities of each parent.

The first step in addressing interpretation problems in the exercise of parenting time is to review the terms of the court order(s). In many cases, the parents have agreed to a vague or less than comprehensive schedule and provisions, either in an effort to speed up or reduce the cost of the court proceedings or in a perhaps misplaced belief that the parties can continue to work together after the breakdown of their relationship.

The parenting time schedule should specify exact dates, days of the week, and times of day for the periods that each parent is to have the child or children. Agreements that merely provide for “reasonable” visitation or visitation “as agreed by the parties” are an invitation for issues. Except in the rare case where a relationship with children ends on a truly amicable and harmonious note, the reasons for the breakdown of the parties’ relationship often carry over into the implementation of the custody and visitation of the child.

Having an order that explicitly sets out the start and end times of each period of visitation, including holidays and vacations, minimizes most of the debates over visitation schedules. This includes having an order that states the exact date that each parent’s alternating weekends or other recurring periods begins (e.g. “father’s alternate weekend visitation commences of November 21, 2014”), the holiday or holiday periods of each parent each year, and the vacation period selection process.

A very specific order allows for anyone (including the court) to calculate whose weekend, holiday or vacation period is when. In those areas where local law enforcement will enforce visitation schedules, the police can only enforce a schedule that is clear on the paper and not what the parents’ may assert the order means.

The weekly (or regular) schedule should incorporate provisions as to the specific time of day the periods start and end so that each parent is clear on their responsibility for being on time for the exchange of the child and handling any issues that may arise during that period, such as a child becoming ill at school or getting to an appointment or activity. The schedule may also need to specify times that apply when the child is attending school and when school is not in session.

The holiday schedule should be clear as to what days and times are included in the definition of the holiday – the day itself, the holiday weekend or period, and the activity times (firework on the 4th of July, trick or treating on Halloween, religious programs, etc.) and the holidays prevail over other schedules.

The summer vacation period provisions should include a priority provision as to which parent’s selected vacation prevails in which years and clarify that the vacation period may not conflict with the holiday schedule.

Specific terms for when and where the parties exchange the child are also important and should include for the exchange to take place at school or daycare or another specific location, and clearly identify which parent is responsible for either delivering the child or picking up the child and whether at the end or start of their parenting time.

The court order may include provisions for the parent who is not with the child to have electronic “visitation” or contact with the child – telephone, video conference, email, or text message. Unfortunately, such court ordered provisions are subject to abuse by the parents or the child, interfering with the parenting time of the parents. Vague orders about “reasonable” electronic contact are often misinterpreted to mean anytime and for any length of time. Such vague provisions may also be asserted to mean the parent with the child cannot control the child’s use of cell phones, computers or the internet. While including a specific schedule for electronic contact which addresses when such contact is not appropriate or not technologically possible may seem to be “micromanaging” the communications, such detail provides parents and child with clear expectations.

As with any legal right, failure to exercise the right or an informal agreement to modify the schedule can add to the debate or confusion on the parenting time. While the parties should be flexible on the parenting time when variations are reasonable, the order should provide that any such informal modifications are not permanent and either parent may terminate any informal changes at any time, with the court ordered schedule being the default requirement of each parent.

While high school age children present additional considerations as to enforcing the schedule, the basic premise is that the schedule is a court order that the parents and child must follow. Generally, the child does not get to choose to follow the schedule. While a parent may make a parenting decision to not exercise their parenting time due to the wishes of the child, such a deviation should either be by explicit agreement of both parents or pursuant to a specific provision of the court order.

The attorneys of Coffee Ward & Bower, LLP are experienced in pursuing child custody and parenting time/visitation compliance or changes. Our attorneys are available at your convenience for a no cost consultation to discuss your questions and concerns in a wide range of family law matters. Please call our office at 618 825-0059 or email our office to schedule a consultation.

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