Abusing Visitation Rights
When a couple goes through a divorce, one of the hardest things they often deal with is custody of a child. Chances are, one of the parents will lose the ability to be with their child every day, and this can often lead to feelings of contention and anger. If a child custody and visitation plan is ordered by the court, it is legally binding but parents may feel the desire to defy a visitation order if they feel that it is unfair – this can be either the custodial parent preventing visitation or the non-custodial parent not following the plan. It is important to keep in ind that defying a visitation order is not only against the law (it is even a crime in some states!), it can have potentially damaging effect on a young child.
Enforcing Visitation Orders
When it comes to violations of child custody agreements, only the parent who has not violated the order can take the other parent back to court to have the original custody agreement enforced. When one parent takes steps to intentionally defy a visitation order, the other parent has remedies that can involve the filing of emergency motions or petitions to hold that parent in contempt of court. The non-custodial parent can take the custodial parent to court if he or she has been denied visitation that has been already been ordered. Conversely, the custodial parent can take the non-custodial parent to court should he or she refuse to return the child at the agreed upon time and/or place, or if he or she refuses to bring the child back at all. One thing that needs to be made clear is that most states will not force a parent (noncustodial parent) to spend time with their child. When a noncustodial parent refuses to take the child for his or her visitation periods, the court will generally not force that parent to comply – this can place a burden on the custodial parent because they may have to quickly make changes to their plans, work schedule, or day are provider. This behavior is unfair on many levels, both for the custodial parent and the child, and can be a compelling reason why visitation orders may need to be modified or why a granting of sole custody may be a possibility.
Habitual Violation of Visitation Orders
When one of the parents continually violates the custody or visitation agreement, a judge can find that parent to be in contempt of court. Being charged with contempt of court in this circumstance can often mean the violating parent must pay the other parents attorney’s and legal fees incurred by bringing the issue in front of a judge. Additionally, the judge can sentence the violating parent to jail time for being in contempt, although this is usually for extreme cases and a sentences are normally for only a very short period of time. When a person is held in contempt of court for defying a visitation order, the judge can even make a decision as to whether custody should be changed. Remember, the courts use the standard known as the “best interests of the child” when determining custody and visitation, and a parent that continually denies visitation with a noncustodial parent may be shown to not have the best interests of the child at heart. This could lead to a custodial parent losing their designation as the custodial parent and flip the case completely, giving the other parent primary residential rights to the child.
Denying Visitation for Child Endangerment
Parents do, in some situations, have the right to deny the other parent visitation or return custody of the child. An example of this is the non-custodial parent being under the influence of alcohol or drugs – the custodial parent has a right, by law, to deny visitation with the child since the non-custodial parent’s current state could put the child in danger. Since these types of situations are often very serious, it is recommended that the custodial parent receive support from an attorney to bring to a judge. In these cases, a judge may order that visitation be halted for a period of time or that a period of “supervised visitation,” either with a family member or at a a facility take place until the court believes it is safe to begin resuming normal visitation.
Oftentimes the first step to denying visitation for endangerment to a child will be the fling of an emergency motion so that the judge is immediately made aware of the serious problems in allowing visitation or continuing with the visitation order already in place. Unless there is a serious reason, such as drug or alcohol abuse, visitation orders should be strictly adhered to. Remember, it can only hurt your case if you make a claim for denying visitation and then you have no proof to back it up. Sometimes, you may have to get the police involved if danger to your child is imminent and you can not wait a day to get in front of a judge on an emergency basis.
It is important to note that no child custody agreement or visitation schedule is the same, even though many of them are based on the same premise, the best interests of the child. Because there are so many differences from one situation to the next, it is important to think through potential situations ahead of time and make a plan so that you are always prepared. This is where having an experienced family law professional comes in, as they have the experience and the tools to help prepare you for any situation that could arise. Unless a dangerous condition exists for your child, you should never defy a visitation order. Instead, always follow the process the right way by filing a motion and getting your case heard by a judge.