Typically, a parenting plan will outline visitation beginning with a phrase along the lines of "During the term of this Parenting Plan the non-custodial parent shall have at a minimum the following rights of parenting time." If so, the non-custodial parent is not required to exercise his or her visitation time, but is allowed to do so. This is because the time is presented as a right, rather than an obligation. What this means is that, if your ex routinely fails to take the kids for their parenting time, you can't have them held in contempt of court for doing so.
But having an ex who doesn't exercise his or her visitation can be very disruptive to your life, as it makes it harder for you to plan and enjoy a social life. There are a few things that can be done, including the following:
File to modify the parenting plan. If your ex isn't regularly exercising their visitation time, you may be able to have the parenting plan modified to reflect the approximate amount of time that he or she actually exercises. This can help in allowing you to plan more effectively. During this modification, you can also request that the parenting time be specified as an obligation rather than a right, allowing you to file for contempt if the time is not exercised. While there isn't much authority on the use of such provisions, it should be an effective strategy.
Another option is to file to modify child support. This may seem unrelated, but child support is calculated on the assumption that the non-custodial parent will have the child for approximately 1/4 of the time, and that the non-custodial parent will cover certain expenses, such as food and entertainment, during those times. If they aren't exercising their visitation, a larger share of the burden of caring for the child than expected is placed on the custodial parent, which provides a basis for modifying child support. Additionally, if child support is modified on the basis of one parent not exercising their visitation, attorney's fees should be awarded to the custodial parent filing for the modification on that basis.
Keep in mind that the above are descriptions of the law - that doesn't guarantee that these statements will apply to your specific circumstances. If you want to find out more, and how the law applies to your situation, call The Lilly Law Firm today at (678) 807-9150.