CHILD VISITATION IS A RIGHT . . . NOT A PRIVILEGE

By Sari M. Friedman General Counsel
Fathers Rights Association, NY and LI

If you are the non-custodial parent and your visitation rights are being interfered with, you should take action. In most instances, the Court will seek to enforce visitation orders.

DEFINING CHILD VISITATION DENIAL

If you are being denied child visitation despite a court order, you are not alone. This is an extremely common problem and there is lots of precedence in the law. We must bear in mind that the Court's major concern is the "best interests of the child." In case after case, the Court has ruled that interference with the non-custodial parent's relationship can be used as an important factor for determining whether the custodial parent is unfit to be a custodial parent.

When visitation is interfered with on an occasional basis the Court's usual response is make-up visits. Nevertheless, and depending upon the severity of the actions, the Court may impose some of the remedies used for consistent denial.

In those instances where visitation is interfered with to a point where a pattern can be established, the Court will consider several possible actions.

POSSIBLE REMEDIES

Sporadic Interference

Where the custodial parent sporadically interferes with the visitation rights of the non-custodial parent the problem is troublesome. Do you ignore it and hope it does not happen again, or do you go to court? What if you ignore it and it happens again two months later? A frequent complaint is that by the time you get to Court the problem is over. As a practical matter, if you choose to address the problem in Court, the best remedy is make-up visitation and possibly if you are lucky, recoupment of some counsel fees. Additionally, the Court may chastise the custodial parent and effectively deter them from doing it again. While the Court may hold the custodial parent in contempt, rarely would the penalty for a sporadic interference with visitation be other than as stated above.

Consistent or Frequent Denials of Visitation

Where the custodial parent consistently interferes with the non-custodial parent's visitation, the Court may choose from a number of possible remedies. For example, the Court may hold the custodial parent in contempt for such violation. Contempt penalties may range from a chastisement, to fines, jail time, a change of custody or a change of future maintenance or child support.

  • Chastisement is usually reserved for a first offense where the Court considers that a simple admonishment will end the behavior.
  • Change of custody. This is possible if the Court determines that the totality of the circumstances renders it in the best interests of the child to live in the HOME of the non-custodial parent. A consistent denial of visitation can suggest that the custodial parent is unfit to be a custodial parent. This factor when considered with a variety of other factors such as a child's desire of where to live, the type of HOME environment each parent offers the child, the emotional, psychological and physical needs of the child and which parent can best meet these needs, become important factors in determining the "best interests of the child," a test that the Court uses in reaching a decision. The Court must be convinced that the best interest of the child will be served to give the non-custodial parent custody.
  • Suspension of future support. If the Court concludes that a change of custody is not an appropriate remedy in a particular incident, it can rule to suspend future maintenance, alimony, or child support payments. This would only apply to situations where the custodial parent has "unjustifiably denied" visitation. This is a remedy saved for very egregious and consistent violations.

BUT ARE THESE PENALTIES EVER IMPOSED?

As a practical matter, the Courts are usually slow to impose these penalties. It is a fair criticism of the system to say that the Courts are more ready to impose a variety of sanctions including jail for parents who do not pay child support, but they are less willing to impose such penalties on parents who deny visitation. Very commonly, these penalties are imposed only after a party has been to Court several times complaining of the same problem.

Nevertheless, a pattern of denial of visitation is not something you should tolerate. It is harmful to your child who is entitled to have a relationship with both parents. Additionally, allowing a significant amount of time to pass without seeing your child can only strain the relationship and make it more difficult to get back on a positive track.

But never take the law into your own hands. Hold back on support payments and you, not the custodial parent, will face possible fines or jail. Instead, consult with your attorney and discuss all available remedies that are discretionary with the Court, to purse an action which can possibly win in the courtroom.