By: Robert Trey Spillman
The holidays are fast approaching, and many are scrambling to finalize their family gathering and celebration plans. Usually this involves taking a look at the visitation provision within your child custody agreement and planning accordingly. Difficulties arise, however, when holiday routines and schedules change, or more commonly, when one parent moves to another city several hours away, or even out of state, rendering a previously workable court-ordered visitation schedule virtually useless. What used to work for the parents may no longer work. Or what is now working will not work next year due to X, Y, or Z. If this sounds familiar, ask yourself if your child visitation schedule is working, and whether it should be changed to reflect the inevitable changes to either you, your ex-spouse, or your child’s lives.
The first thing you need to know is that an out-of-court agreement to modify your child custody visitation schedule is not enforceable. In fact, even if a casual out-of-court agreement seems to be working, your ex-spouse can wake up one day and decide that he or she does not want to follow the new “agreement” anymore and simply ignore it. Worse, they can even sue you for contempt in some cases for denying visitation pursuant to the original court order.
The only way to officially change your child visitation schedule is by obtaining a court order modifying the original child visitation order. The only way to obtain such order is by petitioning to the court with jurisdiction over the parties for a visitation modification. To grant a petition for modification of visitation, the chancellor must be satisfied that the petitioner has proven that the current visitation order is not working and that it is in the child’s best interest to modify the original order. Wilburn v. Wilburn, 991 So. 2d 1185, 1194-95 (Miss. 2008). Fortunately, this standard is not as difficult to show as what is needed to modify custody, but that is for another blog entry.
Keep in mind that visitation modifications are not limited to holiday schedules, but can be applied to other situations such as mid-week visitation arrangements as well. The most common example of an event that renders a child visitation schedule unworkable is when one parent moves out of state. However, it can be something as simple as the child becoming involved in extra-curricular after school activities, or one of the parents getting a new work schedule that is in conflict with the original child visitation schedule.
It is also important to note that the holiday visitation schedules found in most child custody and property settlement agreements negotiated between the parties will generally take precedence over the normal weekend visitation schedule within the order. The absolute best way to avoid a dispute with your child’s other parent or a contempt action is to keep your child custody and visitation agreement up to date. It is highly advisable that if your current schedule is not working, or can be improved upon or clarified, to speak with a competent Mississippi family law attorney who can step you through the process to modify your outdated child visitation order so that there can be no question as to visitation, and so that the holidays can be as stress free and enjoyable as possible.