Enforcing Visitation

Recently, I have seen several posts of a shared article regarding a “new law” which “just went into effect” regarding a new process for enforcing a visitation order. This law can be found in 43 O.S. 111.3 or here. In fact, this law was passed a year and a half ago and became effective more than a year ago on November 1, 2014.  It was proposed by a friend of mine, Rep. Jon Echols, who is a family lawyer. He represents many fathers (some very wealthy), so it is unsurprising that he would be concerned with denial of visitation and seems to be a good idea, in theory.

Basically the statute does this:

1. Transfers the duty of ensuring visitation to the custodial parent;
2. Standardizes the process for filing a motion to enforce visitation; 
3. Provides a form to easily file the motion to enforce. 

The first part is the most concerning. In representing a LOT of both custodial and non-custodial parents, I have essentially heard it all. There is no question there are some custodial parents who withhold visitation for a variety of reasons. Some are reasonable, some are not. However there are a LOT of non-custodial parents who do not ever request visitation or follow through when visitation is planned. That is what makes this statute problematic. Shifting the burden to the custodial parent to ensure visitation puts them in a difficult position. What are they supposed to do when the non-custodial parent is not a great person and really doesn’t want the child anyway? Drop them off on the doorstep? The statute does not give any guidance in this situation.

Recently I had a client consult where visitation was ordered years ago. Dad has made no effort to see the child during that time outside of the very sporadic phone call. He is now threatening to file one of these motions and the reality is he might come and testify that he has repeatedly asked for visitation and he has been denied, and there is very little I can do to prove he is lying. If he gets the right judge, there is a potential that the mother could lose custody because of this statute.

In any event, here is my advice for both Custodial and Non-Custodial Parents as a result of this statute:  

CUSTODIAL: 

1. If there is an existing visitation order, it is now your job to make reasonable efforts to ensure visitation.
2. “Reasonable efforts” will vary for different judges, but my advice is to periodically contact the non-custodial parent and offer visitation, even if they have refused to exercise visits in some time. 
3. Make sure the contact is in a way that is easily presented to the court and provable, such as a text message, recorded phone call, email or Facebook message.

NON-CUSTODIAL:

1. Before filing a Motion to Enforce Visitation, contact the custodial parent a few times and request visitation. 
2. Make sure the contact is in a way that is easily presented to the court and provable, such as a text message, recorded phone call, email or Facebook message. 
3. This provides you an easy basis to show that you have attempted to exercise visitation, and it is being unreasonably denied. 

While the statute is intended to make the process easier, and maybe even allow you to file, or defend, this kind of motion without a lawyer, it is never recommended. You will still be bound by evidentiary rules, and really bad things can happen. I would not ever recommend attending a court hearing where custody of your child was potentially at issue without an attorney to protect you. Remember, I always have FREE consultations and would be happy to answer any questions you may have regarding these issues.