Visitation

David Siegel: Let’s move on to another issue in divorce litigation or family law litigation and that being visitation. Whenever there’s a judgment for dissolution or paternity case, visitation is set out in writing as part of the order. And what happens is often, Jesse, one of the parties is either not exercising that visitation or one of the parties is not allowed to exercise that visitation. If you represent somebody who has visitation rights and they’re being denied, let’s just use the case where the mother has the child and the father has visitation rights and he’s being denied. And he comes to see you. What can you do for him and how?

Jesse Barrientes: Well, I mean, first it’s important for people to know that there is basically a statute. It’s against the law if you deny, for someone to deny visitation rights. And you can go to the police station and they can go. It really depends, in my experience, and what it is essentially is they’ll write a ticket. And then if that happens a couple of times, then it turns more serious. But my experience is that the police just tell the folks, listen you know what? It’s a family law matter. Go take care of it. That’s what I’ve seen in most of my experience.

David Siegel: So I’m at your Aurora office and I want visitation. What are you going to do?

Jesse Barrientes: If you’ve been denied visitation then what we will do is most likely is to file what they call a petition for rule to show cause. That’s how you enforce an order. If the order that was entered says that you get visitation on these specific days or these specific times and you’ve been denied visitation without cause. Now I saw without cause because if you show up and you’re drunk or otherwise impaired, that would be a good reason for the mother not to give you visitation.

David Siegel: Right. No, in this case I’m calling up at my scheduled time. I want to see if the child is available. I’m coming by. I’m in the driveway and there’s no answer at the door. They’re not there.

Jesse Barrientes: Right.

David Siegel: What do I do?

Jesse Barrientes: Well, again, we need to explore. Presuming that she’s really denying, willfully denying your visitation. Not that hey the child was sick and they brought him to the hospital or some other kind of situation like that, you know what we’ll do –

David Siegel: Well, let me give you a narrative here.

Jesse Barrientes: Sure.

David Siegel: She’s unhappy with me. I’m just using me as the example here. Because I am not paying child support pursuant to the statute, pursuant to the judgment. So to punish me so to speak, because I haven’t paid child support on time – maybe I’m having a hard time at work. She’s depriving me of the visitation and holding one against the other. Do I have a cause?

Jesse Barrientes: You do. And so does she. Those two – you know paying child support is separate from the rights of visitation and the rights of visitation are separate from paying child support. You can’t – well I can’t say you can’t do that because people do it all the time, but legally you can’t use that against the other person. But I was talking about the rule to show cause which is how you enforce the order. She would be able to do that to if you haven’t paid your child support, but for the purposes of –

David Siegel: Well I think it’s a great point that you made that people may not know. The two issues – visitation and child support, are mutually exclusive. And by that I mean if you’re not paying child support it doesn’t mean you don’t have visitation rights and vice versa. And a lot of people believe that one goes hand in hand with the other and it’s just not true. They’re completely separate ideas, concepts.

Jesse Barrientes: That’s right. So –

David Siegel: That’s a take away that I think people need to understand. That they do not hinge upon one another. Because I hear that all the time. I’m not giving visitation because he’s not paying me.

Jesse Barrientes: And you don’t use the children as a pawn just to satisfy your own vendetta or whatever it is that you’re doing.

Divorce Book

Child custody

Written response on a child custody filing

Custody agreements

Parenting class requirement

Divorce court costs & fees

Guardian ad litem cost

604B evaluation

Fighting over child custody

Visitation

Rule to show cause