My question involves a child custody case from the State of: New York
My custody order was set 3 years ago when my son was 2 years old. I have sole custody, and my son's father has visitation. Since that time, my son's father started a new job and we both verbally agreed that the visitation agreement of every weekend except one weekend a month no longer works. Shortly after, my son's father moved out of state about two hours away. We agreed to schedule visitation month by month and to make sure that the time between visits is long enough to allow our son to rest from traveling.
My son began kindergarten in the fall. He seldom visited with his dad in the first several months of school because his father was out of town for work for weeks at a time. Now that his father is home, visitation has been whatever weekend he is free from after school Friday to the evening before school Sunday. This has now become a problem for my son. He is exhausted at the end of the week and sometimes cries about having to sit in a car for the two hours and begs to stay home and rest. He does miss his father and I would never keep him from his father. However, I feel as though visiting nearly every single weekend has become overwhelming for him with traveling at the end and beginning of a long week.
So my question is this:
Since we had agreed over a year ago to go month to month with scheduling visitation, if I have the right to tell my son's father that visitation several weekends in a row isn't working anymore during school months and that I believe that it would be best for our son to have visitation to be every other weekend. My son's father is extremely controlling so I know it will create an argument but I do not want to overwhelm my son just because his father wants it. Since we agreed outside of court to schedule visitation ourselves, do I have the right to say every other weekend would be best for our son? Or would that still be a matter of the court to handle? I hand consulted my lawyer about this type of issue in the past, and he stated that since we agreed outside of court that visitation no longer works as stated in the custody order, then as the parent with sole custody, I have the right to tell my son's father that whatever he'd like in a specific month doesn't work for our son, as long as I am not withholding our son from his father for selfish reasons. I just want to make sure that I am not overstepping anyone's rights, but I don't want to sit back and watch my 5 year old suffer. Do I have the right to change things myself, or should I take the matter back to court for a modification of visitation?
Thanks so much in advance!