CHILD VISITATION IS A RIGHT... NOT A PRIVILEGE
By Sari M. Friedman, Legal Counsel
Fathers' Rights Association (NYs and Long Island)
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.
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 - This 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
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.