What happens if the visiting arrangements are not complied with during the holiday period?

In case of separation or divorce, parents who do not have custody of their minor children have the right to visit and communicate with them. This is the so-called visitation system. In the words of the Supreme Court, visitation is the right and duty of the non-custodial parent. The purpose of the visitation system is for custodial and non-custodial parents to maintain the same emotional connection with their children as they had before they stopped living together.

During the holiday period, both parents will have to organise their life and work to comply with the visitation arrangements with their children provided for in the custody agreement or judgment. If you have any doubts about this, a family lawyer will be able to advise you.

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

Sometimes parents find it difficult to comply with the visiting arrangements because their work schedule is not compatible. But there may also be other reasons such as, for example, that you do not get along with your new partner, that your ex does not allow you to see him or her, that your child does not want to be with him or her or, in the worst case, that you do not pay child support and therefore do not let you see your child, among others.

What happens if my child cannot communicate with another parent while on holiday with him/her?

When one parent denies the other parent the possibility to communicate with their child during the holidays, they are not hurting the other parent, but their own child. The best recommendation is dialogue in order to reach an agreement first and for that both have to do their part. It is about reaching an agreement to establish a calling schedule that allows at least five minutes a day to talk to your child. If you are still unable to speak to your child during the holidays, there are several possibilities depending on the circumstances of your case and whether there is a guardianship agreement or judgment that includes a mechanism to communicate with your child.

In the event that there is no divorce decree and no legal action has been taken with respect to your child, and you have had a conflict with your child, make sure that the custody agreement contains a clause that expressly includes the right to communicate with your child. Such a clause needs to set out a specific time period for communication and how you will communicate via phone calls, via Skype, WhatsApp messages, etc.

If you are not pursuing your divorce by mutual consent, but it is a contested divorce in court, your complaint or answer to a complaint should require the judge to set up a system of communication, or even allow your children to have their own mobile phone for communication.

What remedies are available in the event of non-compliance with holiday access arrangements?

The best solution is to reach an agreement and to do so an application for modification of the existing final proceedings should be made to the court, to request that new facts be gathered, to avoid any conflict that may exist.

However, an agreement is not always reached so if an agreement cannot be reached the next step would be to send a request of confidence to the other parent, via burofax, indicating a breach of the agreement.
As of 2015, breach of access is no longer a criminal offence, so there is no point in filing a complaint at the police station. It can only be enforced in civil proceedings where a judge can impose a coercive fine against a non-compliant parent.

What would be the consequences for repeated non-compliance?

In the case of repeated infringements, a modification of the existing proceedings will have to be filed with the court, since according to Article 776.3 of the Code of Civil Procedure: Guardianship on the one hand, may give rise to judicial modification of the guardianship and visiting arrangements.
On the other hand, if the time limit has expired but the court has ex officio authorised the parents to comply but they continue to fail to do so, they may be punished with monthly fines in accordance with the provisions of Article 776.2 of the Code of Civil Procedure. This means that the court will impose a fine for every month that passes without complying with the stipulated obligations since the court ordered you to do so.
These fines, which will be determined by the court, may be withheld for as long as is appropriate in each individual case.

Tips for holidays with children

• The best holiday approach should be to generously provide your child with a system of access and communication, modifying their habits as little as possible at this time of year, taking into account their preferences and needs.
• Remember that your child loves his or her mother and father equally, and this is one of the premises you need to take into account when planning your holiday with him or her.
• It also means maintaining boundaries in their upbringing and reasonable parental guidance during this time without being overprotective. There is no material compensation for the pain of a break-up or the pain of a parent not being in your life. It is better to teach them how to deal with this pain and give them positive messages than to buy them something to ease the pain.
• Contact with another parent during the holidays should be managed appropriately.