8 Tips for Dealing with Denial of Access

access denialOne of the most difficult things to deal with in family law is when one parent denies access to the other. This normally occurs in one of two ways: (1) simply not dropping off the children for access or not being around when the other parent arrives to pick up the children for access; and (2) “overholding” the children – i.e. returning the children late, sometimes by an entire night. I find that it’s particularly problematic around holidays and also where parents live in different cities.

From a legal point of view, the options for dealing with this are unfortunately limited:

1. Usually your lawyer can’t do anything immediately as access changeovers often occur on or near weekends. Even if your lawyer manages to reach the other parent’s lawyer, chances are the other parent is not just denying access, but also avoiding their lawyer’s telephone calls.

2. The police generally won’t help you. Normally their excuse will be that your agreement or court order isn’t specific enough. For instance, if you have access every second weekend, it won’t be clear whether this is your access weekend or not. But even if your agreement or court order is specific, it is rare that the police will want to get involved. They’ll probably tell you to speak with your lawyer.

It’s extremely frustrating to have time and plans with your children ruined without any notice. So, what can you do? Here are my suggestions:

Tip #1. Keep your cool. If this is the first time this has happened, there may well be legitimate reasons why the other parent is delayed.

Tip #2. If you have a chance, go to court on an urgent basis to get an order directing the police to enforce the visitation order. This is a good option for a longer access period – say, if the children were to spend their spring break with you.

Tip #3. Keep trying to pick up your children. If you’re supposed to be spending a specific time period with your children, there’s nothing wrong with going to the other parent’s home many times to try to pick up your children. Even if the other parent is the one who is supposed to drop the children off at your home, it may make sense for you to try to pick up your children.

Tip #4. Document everything. A stern letter should immediately be sent to the other parent or their lawyer. My experience is that these letters normally are not answered, so you should chase this up. The point of this is to create a paper trail so that in the future you can show (if you need to) the other parent’s pattern of access denial.

Tip #5. Demand make up time. Depending on the situation, this may or may not be feasible. Make up time is probably what’s best for the children anyhow.

Tip #6. If a parent is persistently late returning the children, go to court to get the changeover time modified to an earlier time. Also, consider picking up the children yourself rather than relying on the other parent.

Tip #7. If your case hasn’t been resolved yet (i.e. you only have a temporary or interim order for access), use the denials of access to build a case as to why you should get sole custody. One factor courts consider in awarding custody is the willingness of each parent to facilitate access to the child by the other parent.

Tip #8. The last resort for dealing with persistent denial of access is by bringing a motion for contempt of court. As I discuss, there are a lot of difficulties in proceeding this way, but if the other parent is persistent in denying access you really have no choice. The keyword is persistent: it generally not worth going to court about an occasional missed access period.

Have you had problems with access being denied? Please share your story with me by adding your comments below.

Updated July 2019

Comments

  1. Sean Cummings says

    Access denial is more common than a lot of people would care to admit. It’s causes range from everything from that legal grey area immediately upon separation where there is no agreement or court order in plcae to cases where the court order in and of itself is vague and open to interpretation.

    A good strategy that might complement Jeffrey’s strategy would be to focus on building a trail of evidence to show the steps a parent takes to respond to access denial in a peaceful and non-adversarial manner.

    It’s also good to be proactive. If a person has experienced access denial in the past or if access denial is a legitimate prospect, try sending your spouse advanced notice of your intention to access the children, usually via registered mail in high conflict cases, via email in moderate to low conflict cases.

    If the access denial still occurs, send your spouse a registered letter asking to resolve the issue via family mediation and list the names of some mediators. Encourage him/her to select one of the mediators, arrange for the appointment and offer to make yourself available. Give it a week for a response.

    If there is no response, or your spouse tells you to “pound salt”, now you have a small trail of evidence to show a judge the steps you took in resolving the conflict. It also shows the contrast between the parent who is mired in divorce conflict versus the parent who is looking for ways to resolve conflict.

  2. Sean, thanks for your suggestion. It is definitely difficult but worthwhile to deal with denial of access in a constructive manner as you suggest. Rushing off to court, or even just sending nasty letters between lawyers, which is the instinct of most divorce lawyers and litigants, will generally just serve to heighten tension which may well result in future denials of access.

  3. We no longer see my fiance’s two eldest (girls of 13 and 14). Overnight the eldest decided she hated us and never wanted to come again. This was in September 2008. We haven’t seen her since although we periodically see the 13yr old. In December 2008 the ex decided that since my fiance works Saturdays his son would no longer come that day as dad wasn’t around to see him. My fiance and I have lived together for 3 years. I look forward to our weekends with the his kids and so do my children. Does she really have the right to say if he’s not here then neither is his son?

    • @Kamkatie – As for your daughter, with teenagers deciding on their own not to come, that is a bit different than a parent refusing to make the children available for access. It is also a lot more complicated as judges are generally loathe to force a teenager to go to the home of a parent when the teenager does not want to go. How to proceed is going to depend a lot on the relationship between Dad and his daughter. First, there are a lot of nonlegal means dad can pursue to stay in touch with his daughter, such as electronic communications, attending extracurricular activities, etc. Second, if the relationship between Dad and his daughter was good then suddenly was not, quick legal action may be required to ensure continuing access and reunification therapy.

      As between dad and son, mom is not allowed to unilaterally change the schedule, and again dad should act quickly so that this change does not become an established status quo. That being said, perhaps the Saturdays can be switched for another day when dad is not working – it makes sense to be flexible in changing the schedule to accommodate dad’s work schedule.

  4. I have been denied for the past 5 years with no access to my son from his father. I tried to continue to go to the meeting place-the police station due to his violent behaviour-and even the police said they cannot help and even suggested I am damanging my son emotionally because everytime I saw him he would cry for a good 30 mins. With no fincial help I have applied for assistance but do not qualify for legal aid whereas my ex has a church to back him financially. I was awarded custody however we went back to finalize it the judge reversed the decision because at the time we were living in a shelter for domestic abused women. I tried to call but my ex’es new wife refused and mail came back return to sender. I have run out of options.

    • @kmacbride – That is really painful not to see your son for 5 years.

      From a legal point of view, a status quo has developed over the last 5 years. That status quo is going to be difficult to change – you are likely to need legal help. I would recommend going to court, and asking for some access – pretty much any access. Unless your son is an older teenager who does not want to see you, you are likely to get some access. Use the access time you get to re-establish your relationship with your son. Once there is an established pattern of you regularly exercising access with your son, and your relationship is re-established, you would use that as a basis for requesting from the court more time with your son.

  5. Denial of access is theft and abuse and should be treated the same!

  6. I haven’t seen my daughter for almost 2 years now. I live in a different province. Mother has continually made “other” plans that conflict with court ordered access time. I took it court last summer and the judge did ABSOLUTELY nothing to resolve the issue. My daughter was 11 at the time the judge claimed she was a teenager and there was basically nothing I could do. My daughter has been removed from a kind caring loving and committed father’s life out of nothing more than pure imature selfishNess and spite fostered by Mother. The court DID NOTHING.

  7. Mother lives in the US (took child Dec.2014 -10 months old) – We can not get any info regarding cross border
    legal help. She is denying access (won’t take calls, emails, skype etc.) – wants father to stayout of childs life even tho there were lawyers involved early on and an agreement was arranged . When I do arrange to go there it is never “a good time” . I have been making regular trips to Georgia every 3-4 months – child support payments are made to her as well
    as extras paid (ie. daycare) . Anyone know of a situation like this – need help to take her back to court .

  8. My son has only seen his son 3 times since his birth and he turned 1 jan.2017. My son found out that his x has never put the baby’s name or my sons on the birth certificate.
    She lives out of state now and they have no orders establishing paternity, visitatio., or c/s. My son is a disabled vet from the Iraq war.

  9. I have been going to court for the last 2 years to get access for my child. I now have court ordered access for 4 hrs. every Sun. I am being denied this access on a regular basis for whatever reason my ex can think up next. I have recently moved and have updated the new address on my 35.1 to my ex’s lawyer. My court order for access states that my brother is not to be near my child because of a comment he made on Social Media in 2015. I have agreed to this and have followed this order. The issue now is my ex. is asking for a copy of my lease agreement and wants to know if I have any borders living in the home before she will give me access to my child. I am now self representing because I have run out of money so any advice would be very helpful. My question would be, does she have a right to demand this information from me in order for my access to resume?

  10. Non custodial parent is refusing to give his new home address.. I do not feel safe letting them go for his weekend, not knowing where they live. I will be withholding access until address is provided. How can I force the address to be provided?

  11. SylvieM says

    My son has not seen his daughter in a while, they are awaiting mediation. My ex-daughter in-law is denying him access. We have not seen our grand-daughter either. His mediation is not until July, my son also had to see legal aid. What can he do in the meantime, he has not seen his daughter for one year.

Speak Your Mind

*