What to Do When Your Ex Prevents Parenting Time with Your Child during a Divorce Case in Albuquerque, New Mexico?

 

Are you looking for information on What to Do When Your Ex Prevents Parenting Time with Your Child during a Divorce Case in Albuquerque, New Mexico?

New Mexico family courts can hold your ex in contempt if they are preventing parenting time with your child.   Will the court actually hold your ex in contempt of court – it all depends.  Your judge’s actions depend on the facts in your case and your court order’s specific language.

A parent cannot be held in contempt unless there is a clear violation of a valid and enforceable court order.

 

IS YOUR COURT ORDERED TIME-SHARING CLEAR AND PRECISE IN ALBUQUERQUE, NEW MEXICO?

 

Weak parenting plans or child custody orders usually have vague time-sharing language. This time-sharing language may state that the parents will exchange the child by mutual agreement, or in the child’s best interests.  Weak.  A particularly bad custody plan or parenting plan may leave time-sharing up to the child.

Time-sharing plans with vague wording are often useless.

An effective parents time-sharing order should clearly outline a parent’s period of responsibility.  The order should clearly state the precise exchange days, times, and location.  A time-sharing order that fails to be precise is setting the parents up for future arguments and litigation.  An unclear custody order leads the court back to square one with deciding parents time-sharing that is in the child’s best interests.

Developing a clear and precise time-sharing schedule takes work.  But putting in the time now will save you from dealing with problems later.  Creating a weak schedule is similar to sweeping dirt under a rug – eventually the dirt comes out.

 

LOOK TO YOUR PARENTING PLAN OR CHILD CUSTODY ORDER WHEN PROBLEMS ARISE IN NEW MEXICO

 

An effective parenting plan should be very specific and outline days and times for exchanges.  The parenting plan should clearly detail holiday and vacation parents time-sharing.  An effective plan covers each potential issue in detail.

Parents routinely agree to different time-sharing without formally modifying the existing parenting plan with a stipulated order.  The best practice is always to modify the parenting plan with an updated stipulated order, rather than simply following a different schedule.

In reality, there are no parenting plan police that roam in New Mexico and search for parents that aren’t following the parenting plan’s exact terms.  Albuquerque police generally do not become involved with domestic matters without a family court order.  At times, the police won’t even get involved with a domestic matter when a clear court order is being violated.  As you will read throughout this article – it all depends.

Many parents agree to change the parenting plan’s requirements, but fail to update the order.  This can save time in the short term.  In the long term, however, failing to formally update the parenting plan’s requirements can lead to a number of future issues.

 

DO YOU HAVE A CLEAR ORDER DETAILING THE BEHAVIOR REQUIRED BY THE CO-PARENT?

 

Parents that are prevented from seeing their children may file a motion requesting for the other parent to be held in contempt of court.  The judge might hold the other parent in contempt, if the violation is particularly bad, and a clear family court order was violated.

Let’s say, for instance, that you have a vague parenting plan. Possibly the parenting plan says that Father will have the child on a particular day, but does not state the time, or how the exchange will occur.  Potentially Father and Mother then argue about who is responsible for exchanging the child. Ultimately the exchange never takes places because the parents cannot agree on who is responsible to pick up the child.  In this situation, the judge could find that a violation did not occur.

Clear parenting plans create clear violations.  Weak parenting plans create room for argument.

HAS A CHILD CUSTODY OR PARENTS TIME-SHARING VIOLATION OCCURRED?

 

The first step in determining whether a violation has occurred is looking at the court’s order.  Does the parenting plan address the issue?  A common problem during COVID-19 has been one parent refusing to turn over the child for the other parent’s court ordered parents time-sharing.

The parent may refuse to follow the time-sharing agreement because:

• The other parent works in a “high risk” field;
• The other parent recently traveled to another state;
• One parent was afraid to leave the home or risk exposing their child to the virus; or
• (*Insert unique excuse here for not following the court order*).

For any number of reasons, one parent may be preventing time-sharing based on COVID, or another claimed issue. Albuquerque courts are extremely backlogged and are routinely taking three to six months to set a hearing.

Immediately file a motion when the court ordered time-sharing is not taking place.  The longer that you wait, the more excuses you will hear for the violation taking place.  The more excuses that your judge hears, the less likely that firm action will be taken.

When you wait to file a motion, a new “status quo” is forming during the time between the violation and hearing.  At times, once the issue goes to court the judge is confronted with the reality that significant time has passed and the status quo has changed.  Even when there is clear court ordered time-sharing, the court may be reluctant to jump back into the court ordered parents time-sharing, based on the change in status quo.

Similar to most family law issues, it all depends on the particular facts and circumstances of your case.

 

DID THE OTHER PARENT WILLFULLY VIOLATE THE CHILD CUSTODY ORDER?

 

As we have seen, you need a clear order demonstrating that a violation occurred.  Next, you need to show that the other parent violated the order “willfully” or in bad faith.  Generally speaking, once the court finds that there is a clear family court order that was violated, the other side must demonstrate a valid reason for violating the order.

Does your ex have a valid reason for violating the court order?  Once again, this issue all depends on the specific facts in your case.

 

WHAT HAPPENS WHEN THE CHILD DOESN’T WANT TO FOLLOW THE PARENTING PLAN IN ALBUQUERQUE, NM

 

At times parents will not “force” their child to go on court ordered parenting time because the child allegedly refuses. This excuse generally does not work, unless there is a serious problem.  A serious problem may be a threat of danger to the child, or an act of abuse.  In these situations a parent should consult with an attorney or contact CYFD.

Generally speaking, Albuquerque, NM courts do not give children the power to decide.  It rarely is an acceptable excuse that the parenting plan was not followed because the child did not want to see the other parent.

Family judges avoid placing decision making responsibility on a child’s shoulders. Burdening a child with the responsibility of making time-sharing decisions is a form of parentification.  Parentification occurs when a child assumes the role of an adult.

An exception to this general rule can occur when:

• The child is over 16 years of age and has “decided with their feet;”
• CYFD has made recommendations regarding time-sharing or entered a safety plan; or
• A temporary restraining order has been entered that modifies time-sharing.

A parent must always follow a valid and enforceable court order.  Failing to follow this order could result in sanctions, being held in contempt of court, or souring a judge on your position.  Another determining factor is your assigned judge’s temperament.

Some judges treat their court orders more seriously than others.  Some family law judges will greet you with unmistakable wrath if you violate their family court order.

You may have a judge that does not take kindly to her order being violated.  Always treat your court order like an order – not a suggestion.

ENFORCING YOUR PARENTING PLAN OR CHILD CUSTODY ORDER WITH A CONTEMPT ACTION

 

I wish I could say that judges consistently sanction or punish every parent that fails to follow court ordered parents time-sharing. Unfortunately this isn’t always the case.  All judges are different and take different levels of offense to court orders being violated.

Violating a court order could result in some judges awarding the other parent temporary, sole legal custody.  The same issue, with a separate judge, may only result in a mild lecture. Some judges won’t even award attorney fees for the cost of filing a motion to enforce a clear court order.  As you have heard throughout this article — it all depends.

Your judge’s level of reaction to the violation will depend on:

• Your custody order;
• Your judge;
• Your judge’s mood at that moment;
• The other party’s testimony; and
• Your judge’s mood at that moment.

The inconsistency of results often causes parents to continue violating time-sharing orders.

HOW SHOULD I DOCUMENT THE OTHER PARENT’S VIOLATIONS?

 

A parent can take several steps to document a co-parent’s time-sharing violations.  These include:

• Keeping a log of missed parenting time on a calendar;
• Sending an email or text that documents the missed parents visitation; and
• Send a clear email/text requesting make-up time or demanding to follow the order.

If you ex continues to violate the family court order, immediately file a motion documenting the violations.  Do not wait to bring the issue before the court’s attention.  The more time that passes from time that the violation occurs, the deeper status quo that is developed.  This new status quo can lead to your former parents time-sharing being modified.

It is hard for the family court to punish the other parent for violating a court order when significant time has passed since the violation and hearing.  Failing to immediately inform the court can also be interpreted as agreeing to the violation, or not caring.

Document the violation.  Send an email demanding for the court order to be followed.  Immediately file a motion if the violation continues.

 

(505) SANCHEZ HELPS YOU UNDERSTAND WHAT TO DO WHEN YOUR EX PREVENTS PARENTING TIME WITH YOUR CHILD DURING A DIVORCE CASE IN ALBUQUERQUE, NEW MEXICO

 

Do you have questions about what to do when your ex prevents parenting time with your child during a divorce case in Albuquerque, New Mexico?  Matthew Legan Sanchez has over a decade of experience helping parents with child custody issues in Bernalillo, Sandoval, Santa Fe, or Valencia County in Albuquerque, New Mexico.  For more information about what to do when your ex prevents parenting time with your child call (505) SANCHEZ.