Can You Modify Visitation if the Non-Custodial Parent is Not Using Her Time

My question involves a child custody case from the State of: California

I have full, sole and legal custody of my child and his mother only has visitation every Tuesday-Friday. She used to live locally (an hour away tops), but recently decided to move roughly 6 hours away to a commune where they volunteer their time in the form of day labor on-site in order to stay on property for free. She has no job, no home, no phone, no health ins. (and does not believe in doctors), no support system, etc. The ORIGINAL court order stated she was only allowed to reside in 3 different counties during her visitation with our son. This is because she kidnapped him when I was at work with my parents babysitting. She came to the house, grabbed him and ran out the door to a car waiting for her. She is a flight risk and repeatedly threatens to take him anywhere she wants. During the time of the original court order she took him illegally to other areas hours away from her designated visitation areas, but this was something I could not prove in court without some kind of paper trail. She reached out to my father behind my back with a train schedule and planned to take him illegally. She was begging him to talk to me so she could take her son away from me.

With the fear of her running with him again, I refused her visitation on Monday and filed emergencies paperwork that same day. She filed the next day and unfortunately had her paperwork processed before mine so I was taken to court for contempt of visitation. She was denied everything she asked for in her declaration after I explained my side except her wish to move roughly 6 hours away because she was pregnant and close to term. She was then granted to add it to the areas she may reside during her visitation. This was approved without know the condition of the commune she decided to stay at. The commune is isolated an hour up a mountain and the nearest hospital/fire station/police station is an hour away. If an emergency happens, people have to be airlifted out. They have multiple families living in houses, tents, shacks, walk around barefoot, problems with snakes and do not keep anti-venom on-site for emergencies. They allow anyone to come on property and stay and do not have any screening process (i.e. strangers living with strangers).

Before, during and after the original court order she has been unable to keep up with her visitation (more now since she moved). She will see him for two-three days every 3-7 weeks depending on when her mother can pick up my son and make the 6 hour drive to her. He has been stranded up there by her mother before due to a fight they had. I was then forced to make a 10 hour drive (back and forth) to get him because she could not bring him back due to not having any money, a car and a new baby. She has admitted that she is unable to handle everything on her own and thinks maybe she should wait until her baby is older. My son is going to start school soon, but until I get the visitation changed to every other weekend (and hopefully not so far away from me), we're stuck.

How can I address our problem in court to a judge to try and change the visitation to every other weekend and closer? Our lives are on hold because she decided to move and they let her. Thank you in advance for taking the time to read this.

They couldn't actually stop her from moving. That would be violating her constitutional rights. However, the court could have changed the visitation to something that makes more sense with the distance, however if you did not specifically make a motion to the court to do so, the court could not address that.

If your son will be starting school next year, then it would be a good idea to file a motion to modify visitation based on the distance and the fact that your son will be starting school. Six hours is seriously pushing the envelope for weekends. A long distance plan may be more appropriate. If there is any way that you can hire an attorney, I would really recommend that you do so.

Thank you for your response! I am in the process of trying to find a lawyer to go over this in detail, but it's difficult. I also just wanted to clarify something above. She is the one who decided to move 6 hours away, and now that my son has to start school soon, do you think the courts would say anything about every other weekend as a negative? I do not want his education to suffer just because she moved too far and thinks she now doesn't get enough time. She doesn't want him to go to school nor does she agree with the traditional education system. My son's education is more important so I hope the courts take that into consideration when they make their decision. Have you ever seen it go the other way where the court denies a child’s education for a father who has full custody because the parent with the visitation rights is the mother?