File a Motion to Enforce Visitation

Video Transcribed: She’s disappeared with your child. You haven’t seen your kid in years, and now all of a sudden you get something in the mail saying that some random dude that she got with is trying to adopt your child and take your rights away.

Hello, my name is Brian L. Jackson. I am a Men’s divorce attorney Tulsa, OK with Dads.Law. Today I want to talk to you guys about adoption without consent for willful failure to maintain a relationship with your child. Now, this is an important area of law to understand. The other major ground other than failure to pay child support that can cost you your rights in an adoption proceeding is willful failure to maintain a relationship with your child.

Now, the way the law operates in this particular area is it does have to be a willful failure to maintain the relationship. However, if your defense is that the child’s custodial parent or custodian is denying you access to the child, the statute requires that you have to take appropriate legal action to the satisfaction of the adoption court in order to preserve your rights. So the thing to understand about that is if you’re dealing with an ex who won’t let you see your child for any reason, you need to get after that.

That is a legal emergency. It’s an emergency because it can harm your relationship with your child from the standpoint of alienation but it’s also an emergency because it’s allowing her to set up a scenario where she could potentially bring another man into the child’s life and have them adopt the child right out from under you, so this is a time-sensitive, important thing to deal with immediately.

And what do you do? Well, first of all, if you’re not seeing your child, you can file a motion to enforce visitation. That’ll get you into court fairly quickly, those are heard within 20 days of filing. You can also file contempt and you should file both because they each serve a purpose. Motions to enforce are designed to make her obey.

They’re designed to make the custodial parent obey immediately because the court can order them, “No, visitation will occur,” and the court can award you makeup time, the court can give you your attorney fees, the court can even make her post a bond to compel cooperation with the visitation order. So, that’s an immediate now movement you can make to get your rights reestablished, to get visitation started again.

The other thing you can do is file contempt and contempt is designed to punish. The idea behind contempt basically is you can ask the court to assess jail time up to six months, the court can find her, the court can order her to pay your attorney’s fees.

The court can stick her on probation, where if she steps a toe out of line again, she’s going to jail. All of those are options on the table. The only problem with contempt is contempt takes a lot longer to make its way through to courts if it’s not child support content.

This is an unfortunate fact of life at the courthouse, and maybe something that you guys out there who are interested in seeing this situation rectified might want to take up with the legislature or take up with your local county authorities who ultimately manage the courthouse that this should be dealt with differently. But for the time being understand that you will not get a hearing right away on contempt. It will not be handled as quickly as a motion to enforce. This is why you want to go after both.

Another option you may have available to you is something called a Gibbons motion. A Gibbons motion is also known as a motion to modify custody. If you’re dealing with a parent who is just not going to cooperate with a custody and visitation order, that is a material change in circumstance that would justify a change in custody. As a matter of statutory law, custodial parents are required to facilitate a relationship between the non-custodial parent and the child. Not only are they not allowed to obstruct, but they’re also required to facilitate.

That is grounds potentially for the court to change custody although it’s important that you get after it quickly because the more you allow this situation to persist the harder and harder it gets to persuade the court to take action because you set up a status quo and you set up a situation where the child doesn’t know you anymore, or may not know you well, the child’s more likely to say they don’t want to see you and with an older child, in particular, that can be a problem because their opinion can carry weight with the court, so it’s important and the long and short of it, deal with that quickly.

Because again, although it is a willfulness standard in an AWOC hearing, that is adoption without consent, if you’re not taking legal action to vindicate your rights, the court can determine that that’s evidence of willful failure to maintain a relationship.

Now, if you are in a situation where your ability to maintain that relationship is limited, then you should do what you can, whether it’s Christmas cards, whether it’s birthday gifts, whether it’s the phone call, the Skype call, the letter, the email, the text, anything you can show the court that you’re trying.

Then of course if you’re being denied access, then sue her ass. I mean, I don’t think I can be any blunter than that. Sue her ass because she’s got a coming if she’s playing that game. If you need help with a situation like that, go to dads.law, where we will fight for your father’s rights in Tulsa.