As a family law attorney and mom, I am frequently approached by custodial parents wanting to know what they can do when the non-custodial parent does not exercise parenting time. This issue raises obvious questions such as whether it is fair for the custodial parent to have to pay a babysitter when the other parent is supposed to be caring for the kids; and can (and should) a court force a parent to see the kids when that parent does not want to see them? Let’s be honest. While most parents enjoy as much time as they can get with their kids, even the best mother or father needs a break sometimes.

Courts offer little help answering these questions. Judges are simply not in the business of forcing parents to exercise parenting time and there is no legal mechanism that allows a judge to force a parent to spend time with the kids. This is because parenting time is a right, not a duty, under Texas law.  So what is the custodial parent to do?

The best time to fix the problem is before any final court order gets signed.  If you know exercising possession might be a problem, then consider requesting one of the following provisions in your order:

More Child Support.  A custodial parent who will be caring for the kids the majority of the time can ask that the order award him or her support in excess of Texas’ child support guidelines. The amount of time a custodial parent has the kids is a factor the judge can consider in awarding support in excess of Texas’ child support guidelines.

Penalties.  A custodial parent can ask that the order include the imposition of a daily penalty as “additional child support” if the other parent fails to exercise parenting time. This penalty will not only act as a deterrent but will provide additional money from which to cover child care expenses in the event of a no-show.

Less Possession.  If a custodial parent’s main concern is the inability to make plans for fear those plans will fall through when the other parent fails to exercise parenting time at the last minute, he or she can ask that the order limit the noncustodial parent’s parenting time to reflect only that time that will realistically be used.  A custodial parent can also ask that the order require the non-custodial parent to provide a minimum amount of notice if he or she will not be exercising parenting time.

For those parents who already have a court order, there is always the option to file a suit asking the court to modify that order to include the above provisions. That said, a modification suit likely will open a can of worms when the other parent countersues to ask for his or her own set of changes. A modification suit can also be very costly, usually offsetting any benefit in increasing child support.

Remember – a court order cannot solve every problem a custodial (or noncustodial) parent will face, and sometimes it is not monetarily worth it to fight this battle.  In these cases, a better option is for the parent to try one of the following (practical solutions) when he or she needs a night—or weekend—off:

  1. Ask friends and family (take turns watching each other’s kids).
  2. Seek out babysitters through friends and family or through an online caregiver database.
  3. Sign your kids up for Parents’ Night Out and other activities through their school, church, or local YMCA.
  4. Movie night! Make time for yourself when the kids are otherwise (safely) occupied. I promise they will not complain too much if they have to watch two episodes of Paw Patrol while you take a bubble bath!

. . . and if the babysitter cancels – beg.

Remember, being a good parent sometimes means taking care of yourself first.