Dealing with Non-Compliance of Visitation Regime in Divorce or Separation

In this article we are going to review what the visitation regime is and what happens in the event that one of the parents fails to comply with it , either because the non-custodial parent does not visit or does not relate to the minor, or because the custodial parent denies or hinders the other parent’s right to visit the minor .

The visiting regime

In the event of separation or divorce , the parent who has not been awarded custody of the minor children will have the right to visit them, communicate with them and have them in their company .

This is what is called visitation regime .

In the words of the Supreme Court, visitation is a right-duty for the non-custodial parent.

The purpose of the visitation regime is that both the custodial parent and the non-custodial parent maintain the same emotional ties with the children as before ceasing to live together.

Frequently, the non-custodial parent fails to comply with this right-duty. But there are also times when it is the custodial parent ( usually the mother ) who creates obstacles or fails to comply with the visitation regime.

In short, it is mandatory to comply with the visitation regime and both parents may demand compliance with the visitation regime .

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What are the common reasons for non-compliance with visits?

Non-custodial parent’s failure to visit

In the majority of cases in which the non-custodial parent  does not comply with the visitation regime on his own initiative, he uses the following arguments to justify his non-compliance, among others:

  • My work schedule does not allow me to visit my children.
  • My son doesn’t get along with my new partner.
  • My son’s mother won’t let me visit him.
  • It’s my son who doesn’t want to be with me.

Non-compliance with visits by the custodial parent

For its part, the custodial parent , generally the mother, interferes in the visitation regime, preventing or making it difficult for the non-custodial parent to make the appropriate visits, alleging reasons such as:

  • If you don’t pay me alimony , you won’t see the children.
  • I don’t like my son being with my ex’s new partner.
  • My son’s extracurricular activities are incompatible with visiting days.
  • My son does not accept the current situation and does not want to see his father.

Situations in which it is the minor who does not want the non-custodial parent to make visits arise when there is a high degree of conflict between the parents  and become a reason for the minor to refuse to visit the non-custodial parent .

But, whatever the allegation put forward by the parents, you must not forget that the main thing is the well-being of the minors .

What to do if the visitation regime is breached?

Whoever is the parent, father or mother, who fails to comply with the visitation regime, we indicate the steps to follow :

1.- Try to reach an agreement between the parents

The most advisable thing is to reach an agreement between the parents for the benefit of the children.

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The amicable solution will, without a doubt, be the least traumatic for the children and parents.

If the definitive agreement is obtained, if it implies a change in the visitation regime, a request for modification of measures must be filed . For example, when the non-custodial parent must change their place of residence for work reasons.

If it is a temporary agreement, it will be enough to sign a private document that binds both parties. For example, when the parent must stay away for a few months due to work or illness.

In no case is it recommended that the agreement be verbal .

2.- Assess the severity of the non-compliance

If an agreement is not reached, it is necessary to determine whether the non-compliance is lasting or temporary.

It will be necessary for non-compliance to be continued in order to initiate actions against the non-compliant parent .

3.- Reliable requirement

If the non-compliance is a lasting fact, the non-compliant parent (whether custodian or non-custodian) must be reliably required to comply with the ruling or regulatory agreement.

The request will be authentic when it is sent, for example, via burofax or through a Notary .

4.- Compilation of evidence of non-compliance

If, despite having reliably requested the non-compliant parent, he or she does not cease non-compliance, evidence must be gathered to prove this.

It is up to the parent who suffers the breach to prove it, through WhatsApp, messages, email or even witnesses if there are any.

5.- Judicial mediation

As we have been saying, non-compliance with the visitation regime can be carried out by both parents.

For example, the non-custodial father does not pay the support and as a measure of pressure or punishment, the custodian does not allow visits to the children.

In these cases, it is advisable to appear before the Lawyer of the Administration of Justice to carry out the mediation work attributed to him.

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6.- File a demand for execution of a regulatory agreement or ruling

If mediation is not achieved or when non-compliance is repeated, the affected parent must file a claim for execution of the regulatory agreement or judgment .

Said claim must be filed through a lawyer, and it is recommended that this lawyer be a specialist in family law.

After the claim is accepted for processing, the Judge will require the non-compliant parent to comply with the visits in the manner provided for in the regulatory agreement or ruling.

If you do not comply, monthly penalty payments will be imposed . The Law does not provide anything regarding the amount of these fines. It will be set by the Judge.

If the imposition of fines is not effective, the Judge may modify the visitation regime.

7.- Family Meeting Point

The Family Meeting Point is a social service designed to promote relationships between children and parents .

In the event of non-compliance or conflicting compliance with the visitation regime, the parents may request that the child be handed over through a Meeting Point.

The request will be made in the Court, which will monitor compliance with the visits.

Is repeated non-compliance with visits a crime?

Not actually .

Before the reform of the Model Penal Code (MPC)  non-compliance with the visitation regime could be reported to the Police or Civil Guard. This complaint gave rise to a misdemeanor trial.

After the reform, non-compliance with the visitation regime has been decriminalized , so criminal proceedings cannot be initiated.

Only, if the judicial request to which we have referred before has been made, the non-compliance is repeated, may the crime of disobedience to authority be incurred .

Finally, indicate that the crime of child abduction also exists when one of the parents abducts a minor child. It will be understood that there is abduction, when the parent without just cause:

  • Transfer the minor from his/her place of residence without the consent of the custodial parent.
  • Retain the minor in breach of the agreement or sentence.

In any case, it is important to keep in mind that each situation is a special case and requires personalized solutions. For this reason, it is always advisable to have the advice of a lawyer specializing in family law , so that based on his experience and knowledge he can help you find the most appropriate solution for your case.

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