I have a wavier of notice and my ex-wife is not participating in the divorce at all. I have two sons who are 3 and 1 1/2 and I will have primary residency of the kids. She sees them currently for a handful of hours once or twice a week (by her own choice as the divorce is not final yet) but she is living in an unstable environment and I wonder if I can prevent her from having the kids for an entire month in the summer (they have never been away from me for that long)? What would I put in the divorce decree?
You really need to discuss this with your lawyer to insure it is done right. The attorneys in this forum cannot provide legal advice. That said, it sounds like you may have a basis to consider limitation of parenting time.
There ARE ways to restrict parenting time/visitation, however, Texas (and all US States) use the best interest of the child standard to determine how to manage such things. Despite this agreement, the specifics vary greatly from state to state, so it is important to get real legal advice from someone local to insure you manage your case correctly There is no substitute for the attorney client relationship,
This answer is offered for informational purposes only and does not constitute legal advice or create an attorney/client relationship. I am licensed to practice in Michigan only. Please seek competent local legal help if you feel you need legal advice!
There are couple of issues based on your question beyond what to put in the divorce decree. A waiver of service/notice does not mean that your ex spouse waives all her rights to be heard by the court nor be forced to accept everything that you put into the divorce decree. A waiver of service is just that, a waiver to having to be served by citation. If your ex spouse agrees to all other condition in the divorce decree, than it is considered an agreed divorce decree where both parties will be required to sign off. It doesn't require that she attend the hearing/court if she signs the agreed divorce decree.
If your ex spouse has signed the agreed divorce decree that you are going to file with the court, than you cannot change anything contained within the agreed decree without her resigning that changed decree. If you do, she has legal recourse against you.
If your ex spouse signed the waiver of service but does not agree with the condition set forth in your divorce decree, than either your can default her (which will consist of other procedural rules that will come into play) or it will be a contested case.
In regards to excludign the extended summer visitation, you can deviate from the standard possession order, but you have the burden show why the court should deviate.
Sorry for the many hypotheticals and the vague answer, but more facts.
As you are aware, divorce and child custody is a complex and delicate process.
Consult a local family law attorney to assist you
Good luck and wish you success
Min Gyu Kim (Peter)
The statement above is general in nature and does not constitute legal advice, and in no way be interpreted as legal advice. Consult with a local attorney in your area to receive an answer specific to your case. This information does not create an attorney-client relationship.
Most children that young do not stay away from the primary residential parent for that long. have you discussed this with a local divorce lawyer that has expertise in this area? You rally should. You could go to the law library for some ideas on how to word this part of you agreement. You mostly need input from child psychologists and specialists in custody and or visitation for very young children. Usually one week is the limit for a summer vacation type visitation. It could be two weeks total but one week a time. this is called nonconsecutive weeks.
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