Am I obligated to change the custody order when the non custodial parent cancels or demends a different time?

Asked almost 2 years ago - Clintondale, NY

My ex and I have a 5 year old son whom I have primary custody of and we share joint legal custody. She gets him for visits every other weekend for 48 hours and some rotated holidays. She is scheduled to have our son this weekend starting at 6pm Friday night. He happens to have a school play at 1:45 the same day that we've invited her to attend. She is demanding I change the time and allow her to take him as soon as the play is over instead of her ordered time of 6pm. I declined because I have plans to take my son out later that day before her sceduled visit. She told me "You're being a dick" when I declined and said she was taking him anyway and didn't care if I liked it or not. She is only granted custodial time on the weekends. Can she take him against my wishes?

Additional information

The school has said they will NOT allow her to remove him from the school without my written permission since I am the one with primary custody. I've been told in the past to never deviaite from the custody order unless it's a dire emergency. Am I obligated to allow the change? She's now stated she will refuse to come unless I let her do what she wants.

Attorney answers (4)

  1. Aashish Kumar Nangia


    Contributor Level 7


    Lawyers agree

    Answered . You are under no obligation to deviate from the underlying order and its terms. If her visit is supposed to begin at 6pm pursuant to your order, then that is what controls. She must follow it. You can allow her the additional time if you so choose, and you do not need to worry about changing the order for a one time deviation from its terms. You should be careful however, in altering the terms of the order if you and the child's mother do not get along. Substantial changes to the order on your part may open the door for future modifications by the court which may not be in your favor.

  2. Lawrence Allen Weinreich

    Contributor Level 18


    Lawyer agrees

    Answered . As the court likes to say "The order is the order". That means that if the two of you do not agree on any changes to the order, be it one time or forever, then you must follow the order. Since you do not agree on a time change then the order must be followed as written.

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  3. Peter Christopher Lomtevas


    Contributor Level 20


    Lawyer agrees

    Answered . The short answer is 'no'.

    I do not like her aggressive stance in this matter. Have her file a petition to modify the order. However, be very careful when summoned to family court. Have a good lawyer represent you and have your diaries, calendars and notes all in order. The most important thing is not stipulate to added time.

  4. Martin Alan Cohen

    Contributor Level 8

    Answered . I am an Attorney that represents children and issues like this crop up all the time. First and foremost is the Custody Order. She may not like it, but it is the controlling document. So, option one would be to follow your original plan notwithstanding the grief she gives you. In this example, she cannot take your son against your wishes.

    Second option: You are welcome to deviate from the document if it makes sense and it is not routinely done. In this situation, and given the limited facts, perhaps it makes sense to allow your ex to take your son after school since she is going to have him at 6pm anyway. There may be a lot of back and forth driving to get the child to school, then to your house for the "plans" only the then transport him to your ex's house for her scheduled weekend visitation. If true, that can exhaust a five year old. If you do deviate, consider what another lawyer stated: if you routinely deviate from the Custody Order, your ex will have a good argument to amend the Custody Order if an when a new petition is filed.

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