Skip to main content

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

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?

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.

+ Read More

Attorney answers 4

Posted

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.

Asker

Posted

Can I call the police if she attempts to take him from the school? They have said they have to folow the order and would need my written permission to take him. She sems to think she doesn't need to follow any rules and has gone as far as to tell me the rules and laws don't apply to her simply because she is his mother. To my knowledge and what I've been told unless it's during the time she is granted visitation she is not permitted to remove him from my custody. She seems to think that since we shage joint legal custody that it gives her the right to take him anytime she wants. I've tried explaiining that joint legal custody is not the same as 50/50 or joint custody. That joint legal custody only gave her a vote in major life descions but not that she can do anything she wants.

Keith G Langer

Keith G Langer

Posted

Any time anyone other than the custodial parent or the authorized designee thereof attempts to take a child from school, the school should notify the police. The school should know this, but sending the adminstrator a copy of the court order awarding you physical custody and a directive to NOT release your son to anyone not previously authorized in writing by you might be prudent.

Posted

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.

I hope you found this answer helpful and if so, please let me know by clicking the "Mark as Helpful" button at the bottom of this answer. It’s easy and appreciated. You can also choose a "best answer" if you wish. This is easy to do and greatly appreciated.

This advice is not meant to create an attorney-client relationship and is a general anwer to the question posed.

Posted

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.

Posted

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.

Asker

Posted

I'm thankful for the responce. She didn't bother to show up or even call to say she coundn't make it. My son was pretty upset because he had talked to her about it on his own. That I did not know. She was then an hour and 45 minutes late for her pick up of 6pm. This is an ongoing issue. She is anywhere from 30 minutes to two hours late each visit. You would think after 5 years of the same pick up time she would be able to be ontime. Then she complains about not getting enough time with him. She's invuted to attend evtra activities but has NEVER in 5 years attended any and then gives up two hours each time for being late. She makes no sence. You can't demand or complain about not getting time when you don't even use the time given to you. She still has yet to use her second uninterrupted week and it's already November.

Martin Alan Cohen

Martin Alan Cohen

Posted

You can always visit an attorney and discuss these things. If your slate is clean and she is routinely disappointing your son with false promises and lateness issues, you could file a petition to modify the court order to add protective clauses. For example: if mother is more than 30 minutes late for any pick up time, the entire visit is waived. Good luck.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer