Non-compliance with visiting arrangements

Non-compliance with visiting arrangements is the cause of a large number of lawsuits filed in Spanish courts. In fact, it is a fairly frequent problem and one that many people affected do not give the importance it deserves. Here we will discuss what it consists of, in what cases it occurs and what effects it can have on the person who does not comply with it.

What is visiting arrangements?

First of all, it is important to define this concept. It is a concept that arises in divorce or separation proceedings whenever there are minor children involved. It entitles the non-custodial spouse, i.e. the spouse who does not usually live with the children, to visit them physically at certain times and to communicate with them.

The visiting arrangements are set out in the separation or divorce agreement by means of a court decision. It may be the result of an agreement between both spouses or an initiative of the judge in the event that this does not take place.

Reasons for non-compliance with the visiting arrangements

Failure to comply with the terms of the visiting arrangements leads to non-compliance with the separation or divorce agreement, as is obvious. It is often thought that such non-compliance is only by the non-custodial spouse, but this is not the case. It occurs on both sides and is equally reportable in both cases.

In our experience, the most common explanations given by custodial parents are as follows:

• "My ex-partner is in a new relationship and I don't want my children to spend time with her".
• "As long as she doesn't pay me child support I won't let her see the children."
• "My children don't want to go with their father/mother and I won't force them".
• "When I take the children to my ex-partner they end up staying with the grandparents, so it's better for them to stay with me".

Asimismo, los progenitores no custodio también suelen mostrar una gran variedad de argumentos para no cumplir con el régimen de visitas:

• ”Mi horario laboral me impide recoger a los niños cuando me toca”.
• ”No puedo llevar a mi hijo al colegio un día concreto, así que se lo llevo a su padre/madre el día anterior para que lo haga.”
• ”Mis hijos no quieren venir conmigo y no les voy a obligar.”
• ”A mi nueva pareja no le gusta que lleve a mis hijos a nuestra casa.”

Except in the case of a breach of work-related visitation, which we will discuss later, none of these arguments is sufficient reason to breach the terms of the divorce or separation agreement, nor will it serve as an exoneration before the judge if the affected party decides to go ahead with the lawsuit.

What to do in the event of non-compliance with visiting arrangements?

Many people do not know what to do in the event of a breach of visiting arrangements by their ex-partner. First of all, it is important to bear in mind that by non-compliance we mean an unjustified and repeated situation, not a one-off occurrence.

If it is not a one-off situation, and before bringing an enforcement action for non-compliance with the visiting arrangements, you should do the following:

Negotiate with your ex-partner: it is best to do this in the presence of a lawyer and always with the aim of preventing a recurrence of non-compliance. This is undoubtedly the best and simplest solution for all parties. Especially for the children you have in common.
Let us imagine that you come to a temporary agreement with your ex-partner because there is a breach of visiting arrangements due to work. In this case, you can sign a private document before a notary which contains the modifications to the agreement which will be applied during this time.

If, on the other hand, the change in the agreement is to be definitive, you will have to file an application to modify the definitive measures so that it can be signed by the judge by means of a court decision.

Let us imagine that, whether an agreement has been reached or not, the non-compliance with the agreement by your ex-partner with regard to the visiting arrangements persists. These would be the next steps to take:

Filing of preliminary injunctions: in these, the ex-partner should be urged to meet his or her obligations with regard to visiting arrangements. It is advisable to send them by burofax so that there is a record of them and they can be used as evidence before a judge.

Filing of an enforcement action for non-compliance with the visiting arrangements: its purpose is to require the parent who does not comply with his or her obligations to give the relevant explanations in court. It should be pointed out that in any model complaint for non-compliance with the regulatory agreement, the respondent should be warned that, if he/she persists in his/her attitude, he/she may incur a crime of disobedience to the judicial authority.

Consequences of non-compliance with the visiting arrangements

Within the model complaint for non-compliance with the visiting arrangements, the respondent is also given a deadline to appear in court. Whether or not he/she does so, as long as he/she refuses to comply with his/her obligations, he/she may be fined monthly coercive fines. The amount of the fine will be determined by the court itself in accordance with article 776.2 of the Civil Procedure Act. It may also keep them in force for as long as it deems appropriate.

In these cases, it is advisable to use a Family Meeting Point to hand over the children to the non-custodial parent so that the court can monitor the situation.

Criminal consequences of non-compliance with the visitation regime

Until 2015, repeated non-compliance with the visiting arrangements agreed in the divorce or separation agreement was considered a misdemeanour under the Criminal Code in force in our country. However, that year this conduct was decriminalised and must be judged through the Civil Code.

However, this does not mean that repeated non-compliance with the regulatory agreement cannot have criminal consequences. The only requirement for this to happen is that the aggrieved parent brings an action for enforcement of the judgment for non-compliance with the visiting arrangements.

As we said, together with this application, a court order will be issued to the defendant to resume his obligations under the visiting arrangements agreement. If he persists in his attitude, and by virtue of what is specified in article 556 of the Penal Code, he will be committing a crime of disobedience to authority that can lead to serious criminal damages.

In addition, non-compliance with the visiting arrangements is considered sufficient grounds to force the judge to modify the agreement. In fact, it is common for the judge to change the custody of the children from one parent to the other if the problem is particularly serious and persistent. In any case, it is always advisable to approach this process with a lawyer to guide and advise the plaintiff.