If both parents made an oral agreement ( not a stipulated order ) and have continued to act on the agreement " e . g : Father has reasonable visitation on court order . Both parents agree ( oral agreement , not in court ) that father will have children every M - W , and have telephone contact daily . ) If the mother no longer wishes to follow through ( started about three weeks ago ) with the agreement and the arrangements they both made outside of court ( over two years ago ) would this constitute a change in circumstance since the last court order ? Or does the " Change " have to DIRECTLY conflict with the actual order . If it does represent a change in circumstance ( IE : " an oral agreement or arrangement is enforceable , etc " ) can you please cite some cases for me ? Thank you
The mother will not let me see or even speak to our child. She has disconnected the phone and will not give me a number to make contact.
Family Law Attorney
First, if the order providing you “reasonable visitation” is a temporary order where no custody determination has been , you do not have to show significant changed circumstances (In re Marriage of Carney ( 1994) 24 Cal.3d 725. In re Marriage of Lucio (2008) 161 CA4th 1068). Second, if your goal is to obtain court ordered specified periods of visitation to serve as parameters of the court ordered “reasonable visitation,” then you technically are not seeking an order changing the order granting you reasonable visitation. Instead, you are simply asking for an order identifying the dates and times that will constitute the “reasonable visitation.” If you motion the court, I would recommend that you NOT check the modification box and instead check the “OTHER” and insert something to the effect that you seek an “Order identifying specific visitation periods for implementing reasonable visitation rights” and support it with your declaration setting forth the facts forcing you to have to seek court assistance to protect your right to reasonable visitation.
The following is a small suggestion on what you may want to say in your declaration:
That since the entry of the order two years ago up until about a month ago, parties agreed visitation would be (? Spell out the arrangement in detail) and had been successfully implementing it; that beginning a month ago, Mother began refusing and continues to refuse, to allow the previously agreed upon reasonable visitation periods which has become the status quo over the past two years; and further refuses to allow any visitation schedule and refuses to allow telephone contact with our children, in of which is in contravention of the court’s order granting me reasonable visitation; that repeated good faith efforts by me to resolve the visitation problem with Mother have been made, including…….(state good faith efforts to get problem resolved with ex – e.g. : prepared a proposed stipulation and order setting forth specified periods of visitation consistent with the agreement implemented over the past years and which is now status quo, but she refused and continues to refuse to agree to any visitation or telephone contact…[you should also tell the court what the ex is telling you, if anything, about why she is all of a sudden not now allowing the visitation and tell the court why whatever her excuse is, is not grounds to cut off your visitation rights.]
You really need to consult with an experienced family law attorney to guide you thoroughly through this intricate process. There are other possible options you may want to entertain of which you may not have thought of. For example, the fact that the ex is preventing you from having frequent and continuing contact with the children (not to mention violating the order of reasonable visitation) could be a ground to seek a change of joint custody –if you can show that the change is in the child’s best interest; and if the custody order is joint and temporary, you would not have the burden of proving changed circumstances You will want to take a look at Family Code Section 3087. In my opinion, the ex-s recent refusal to allow the visitation is a significant change in circumstances.
You only get one bite of the apple …. Get help from a professional who can guide you as needed.
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Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.
As a general rule of thumb, if the parents agree on a visitation schedule and follow that schedule, then the parties do not need to go to court on the issue of setting a visitation schedule. The parties usually end up in court, however, because they cannot agree on a visitation schedule.
You did not mention what the court ordered visitation was, however, it sounds like a person in your position may need to return back to court if the current visitation schedule is not working. The passage of time is itself also considered "a change of circumstances" because, as a child gets older, the child needs also change.
Sounds like you are representing yourself and are attempting to understand the law. I recommend, in the alternative, that you call an experienced family law attorney for a free consultation. Also, some attorneys provide coaching services to people who cannot afford to hire an attorney to represent them.
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