When we talk about visitation regime we refer to the one decided by a family judge after carrying out a divorce process between two people who have children in common. We consider it necessary to clarify that the father and mother, when they are in a marital relationship, mutually exercise the parental authority of the children they have.
Once the divorce is exercised and in function that both must continue fulfilling their roles as parents despite being separated, before the law they must agree on what refers to alimony benefits and parental authority of the children.
What does parental rights have to do with visitation?
- When we talk about parental authority we refer to the decision made by the judge, based on the best welfare of the children, where one of the two parents will live with the children on a daily basis.
- If there are minors, they will have the right to live with the parents so that both provide them with care and love as well as food and other necessary elements for their good living.
This division of shared time where the parent who does not exercise parental authority can enjoy his or her child is called visitation.
Who will exercise parental authority?
- Upon the decision of a family judge, the parental authority will be exercised by the parent where the child or children will live on a daily and constant basis; and the visitation regime, including days and times for visits, will be an activity of the parent who does not live with the children on a daily basis.
- Then, the parent with whom the children remain will have the responsibility to provide daily care and attention; the other parent will retain the rights of supervision and cohabitation with the children through the visitation regime, according to the modalities and decisions provided in the agreement or judicial resolution of the divorce or separation.
Does this mean that both parents must comply with the measures agreed by a judge?
Absolutely yes, in fact, the non-compliance with this agreement gives rise to the breach of the agreement and can occur by both parties.
There are many cases in which a parent decides to take revenge against the ex-partner because of the emotional pain that the divorce has left in his or her life and does not allow his or her children to relate to their paternal or maternal relatives (as the case may be), including even grandparents, aunts, uncles and cousins, in this erroneous decision loaded with pain and anger.
Another common example is that the parent who must comply with visitation not only divorces the couple but also their children, denying them the possibility of maintaining a healthy relationship despite the separation they have suffered from the divorce. In other cases, sometimes the parent conditions the cohabitation to which the children are entitled, until the obligation to provide financial support for which the other party is responsible is not fulfilled.
What to do if there is a breach of the visitation agreement?
In these cases, at the request of the interested party, it will be able to go to the family judge to request that they be allowed to cohabit with the children and to assure in an effective way the regime of cohabitation.
As you can see, it is not only a matter of complying with the economic obligations that a parent has with the children according to their growth, as established in article 287 of the Civil Code, but also to provide them with the emotional and affective part that are more important than the material goods that the parents can offer them.
Rights of the children
The family judges keep in mind that the children have the right to cohabitation with both parents, either on a daily basis with the parent who has custody, or visitation with the parent who does not have custody. If the causes or limitations for one parent to be unable to reconcile an effective visitation regime is due to the other parent not being available at the agreed times, both may go before the judge and raise the situation, so that he/she may issue a ruling where new days and times for visits may be given and be supported by an opinion.
What happens if one of the parents does not agree with the performance of the other?
With the entry into force of the new Penal Code of Mexico, renewed on July 1, 2020, the parent who does not agree with the performance of the other parent regarding the visitation regime, may seek only by civil means the new execution for the children to have the cohabitation with the parent who is failing to comply with the first sentence.
However, if this non-compliance behavior is reiterative despite having exhausted the channels of informal agreement and new civil agreement and there is evidence to prove this breach, the competent authorities may see this fact as disobedience, and may file a criminal complaint before the judge, if necessary.
Disagreements that may occur
In spite of this, the law foresees the disagreements that can occur in this unsuccessful visitation regime offering both parents the option that the children can live with the parent who should visit them through a meeting point.
We must keep in mind that despite the sentimental situation of the parents, the children can not drag with the disagreements of their parents, they can not carry the weight of a relationship that did not work or divide the affection they may feel for each of their parents.
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