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Can a parent take a child when it's not their scheduled visitation time?

New Paltz, NY |

I have primary physical custody of my 5 year old son, EX and I share joint legal custody. She is ordered to have visits every other weekend from Friday at 6pm until Sunday at 6pm. Some rotated holidays and then 2 (1) week visits during the summer. She seems to think that she can go to our sons school and remove him anytime she wants. She lives 60 miles away. The school knows the custody situation and has informed me they would not allow her to remove him on their part but I'm curious as to what she is permitted or not permitted to do. The custody order does not include anything about that since it was put in place and signed when he was three months old. If she were to take him from the school without my knowledge it is a violation of the order correct?

I've attempted to speak with her about it before but she just insists since she is the mother that she can do whatever she wishes and neither the school or I can stop her. She's threatened both me and the school with lawsuits if she's not allowed to do what she wants and take our son when she wants. I was under the impression that when one parent had visitation time that the other parent couldn't simply show up and take the child. Also that since she was only granted visitations on the weekends that I had visitation and custody at the other times and she can't take him from me. Is that true?

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Attorney answers 5


Without seeing the order it is difficult to give you an answer. In most cases where one parent has residential custody with a specific visitation schedule to the other parent, the non-custodial parent cannot take the child without the agreement or consent of the custodial parent. Show your order to a local family law attorney and discuss the issues with him.

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Agree with Mr, Weinreich. The answer is no, so long as the visitation order is clear as to the schedule. If the violations or threats continue, you can bring a violation/enforcement petition in Family Court. I would consult with a family law attorney in your county; you can use the search function on this site to find one.

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First, I agree you should bring the full agreement/order into an experienced attorney to review. Second, if you are in disagreement with her doing this, then you need to capture it in writing to her so she cannot later say in court that you "went along with it." Third, perhaps you need to speak with the attorney about doing an amendment to the agreement allowing her to pick-up the child from school on the Fridays she has access time.

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What she is, or is not, allowed to do should be spelled out in your custody agreement/order, the entirety of which should be given to the school with instructions that they are to follow the shedule as outlined in the order. You should also put the school on notice as to who is permitted to pick up the child on your days so that the child is not released to the mother. This is the best way to handle the matter. If she continues to go to the school to pick up the child on her non-parenting days, you can file a violation petition. However, you should be careful when you file petitions. Try and work things out before filing. If you file, that might give her an opening to file a modification petition to attempt to modify the parenting arrangments. Speak to an attorney before you do anything.


The agreement is the law of your case unless you and your ex agree to not adhere to it. If you do not agree with her going to the child's school on her whim, give a copy of the agreement/court order to the school and explain that the mother doesn't not have a right to pick the child up without your specific authorization.

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