In the majority of custody cases, the court prefers that the child have a meaningful and healthy relationship with both parents. And usually, it works out well. Sometimes though, a parent may fail to comply with the custody order. Even if they feel justified in doing so, it is still a violation of a court order and can have serious consequences.
Can a Non-Custodial Parent Refuse to Return Their Child After Visitation in New York?
A non-custodial parent cannot refuse to return their child after visitation if there is an order from the court that provides a visitation schedule or if it does not comply with the parenting plan that the parents created.
The order from Family Court that details the custody and visitation arrangement is legally binding and both parents are required to adhere to it. Failure to do so can result in the noncompliant party being charged with contempt. However, if either parent is guilty of a severe custody violation, then it needs to be addressed. If the parents can’t work it out themselves, then the best course of action is to take it to court.
What is Severe Custody Violation in New York?
A severe custody violation is a serious behavior or action that could potentially put the child in danger or is a direct violation of the custody and visitation order. Severe custody violations include:
- Abusing drugs or alcohol in the presence of the child.
- Chronically showing up late or early for pick up or drop off.
- Refusing to take the child to court-ordered counseling sessions, after-school activities, medical appointments, or school.
- Interfering with the other parent’s visitation, phone calls, etc.
- Frequently missing visitation pickups.
- Refusing to return the child after visitation.
Depending on the severity of these and the impact it has on the child, it may be necessary to get the police involved and take the parent to court for contempt. Your attorney can help you decide the best course of action based on your circumstances.
How Do You Enforce a Child Custody Order in New York?
Violating a court order is very serious. And when it comes to custody, it can be even more serious because it affects the child’s welfare. It is best to have a family lawyer in a matter like this because they know what is needed to file for contempt and make the other parent stand before the judge and be held accountable for their actions. It is best to try to work things out by talking to the parent, but if that doesn’t work, then the next step is to take it to court.
When a custody order is being violated, the parent can file an enforcement petition in family court against the other parent if their custody order has been entered by the court. This is why it is so important to file custody and visitation parenting plans with the court. Once it is filed in the court, the court can enforce it.
A hearing will be scheduled once the enforcement petition has been filed. At that time the court will decide how to correct the situation. If the parent decides to pursue their complaint as a criminal matter, the other parent may face penalties such as jail time and be required to pay court costs and attorney’s fees. If the parent ops to not pursue it as a criminal matter, the judge may make adjustments to the parenting plan, award the parent with extra days to make up for the time they lost with their child and hold the other parent in contempt of court.
If there is a custody agreement, but not a court order for custody and visitation, the court can only intervene if the parent believes that their child is in imminent danger. If that is the case, the parent should contact the police right away.
What Do You Need to Do to Show That a Custody or Visitation Order is Not Being Followed in New York?
It is a good idea to keep a diary of all visits, phone calls, emails, text messages, and other interactions with the other parent. Record days and times of pick ups and drop offs as well as any conversation that occurred at that time. If the other parent had an explanation for what they did, document it.
If the other parent is suspected of engaging in dangerous practices in the presence of the child, there needs to be official documentation to substantiate it. Counselor and medical records and other documentation that shows the child is in danger with the other parent is important.
If the parent is refusing to return the child after visitation, document all phone calls and other communication with the parent, their friends, and family. If the parent goes into hiding, those friends and family may be witnesses when the case goes before the court.
What Does It Mean to Be in Contempt for Failing to Comply with a Child Custody Order in New York?
When a person is held in contempt of court for failing to comply with a child custody order, it means that they have violated an order of the court. They have the right to a trial to determine if they have violated the order, so it is best to have an attorney.
Contempt of court can be a serious charge with serious penalties if the person is convicted.
What are the Penalties for Violating a Custody Order in New York?
Violating a custody order is contempt of court. Some of the penalties that the defendant can incur include:
- Jail time
- Fines
- Changes in visitation
- Changes in custody
- Requirement for supervised visitation
- Pay opposing counsel fees
- Pay court costs
Anyone who is accused of violating a court order should immediately adjust their behavior and start following the order. If there are concerns or the current custody and visitation order does not work for the parent, it is better to talk to the parent or return to court for a modification than it is to simply violate the order and potentially be held in contempt. Any questions should be directed to the parent’s attorney.
If you have been accused of violating a custody and visitation order or are in a situation where the other parent is in violation, especially if they are refusing to return your children as ordered by the court, it is time to take action. Call the Litvak Law Firm today at 718-989-2908 and get the help you need. Our compassionate, knowledgeable, aggressive legal team will fight for you and your child and get the justice you deserve.