I have and will continuously support the position the legislators have, that both biological parents rights to have visitation with their children is as fundamental as any of the rights bestowed upon us by the U.S. Constitution.  Unless exercising those rights would be detrimental to the child, i.e. where there is child abuse or domestic violence, thereby defying what is in the best interests of that child, visits with one’s children should not be interfered with by anyone, including the other parent.  Statistics show that children prosper a lot more when they have two nurturing parents involved their lives, as opposed to having contact with only one parent.  However, there are still an immeasurable number of petitions for child visitation and petitions for violation of visitation being filed everyday in family courts. 

          This is the first part of a two-part entry on the range of legal consequences that may be imposed by the court when a child visitation order issued by the court is consciously and deliberately violated by the custodial parent.  And although this happens more often than a layperson may imagine, there are custodial parents, from all walks of life, who blatantly disregards a court’s directive.  Their reasoning typically ranges from their insistence on getting even with the noncustodial parent, their being caught up on satisfying their own personal and selfish wants or simply their knowing that they can get away with it.

          The Family Court Act, the Domestic Relations Law and other applicable provisions clearly establishes a number of penalties that the may be imposed when  court ordered child visitation is being intentionally violated by the custodial parent.  However, in this entry I would like to address what actually constitutes a violation.  Violations are can consist of behavior from interfering with a telephone visit to outright denial of visits by relocating out of state without consent or a court order.  The visitation order can be temporary one (while the case is still pending) or final one or issued by Family Court or part of a divorce in Supreme Court.

 Here are examples of violative behavior:

          Scenario 1:  There is a temporary order of visitation that directs the custodial parent to allow the child to telephone his/her noncustodial parent at 6PM Monday thru Friday and that that parent should leave the child alone while talking to the other parent so that the child is the one to decide when to end the conversation.  The custodial parent remains in the room while the child makes the call and influences the child to end the conversation after a few minutes.

          Scenario 2:  There is a final order of visitation that orders the custodial parent to not be present when the noncustodial parent comes to pick up the child, that either another family member is to bring the child out to that parent or the child (who is old enough) walks out to the other parent alone, while the custodial watches from the door.  The custodial parent continuously brings the child out to the other parent when there is someone else at home to do it.

           Scenario 3:  There is an order of visitation that directs that the child and the noncustodial parent engages in therapeutic visitation at the psychologist’s office once a week.  The custodial parent neglects to bring the child to the scheduled appointments and misses several appointments.

          Scenario 4: There is a temporary order of visitation that states that both parents are to pay 50% each of the costs to have an agency conduct supervised visitation between the child and the noncustodial parent.  The custodial parent refuses to pay his/her share and the agency refuses to monitor any further visits.

          Scenario 5: There is an order that the custodial parent is to provide the noncustodial parent with medical information and/or devices for each visit.  The child requires very specific medical attention or treatment and is subject to emergency medical care when he/she does not get such treatment.  The custodial parent intentionally fails to provide the necessary information or device to the noncustodial parent which disrupts the visits by trips to the emergency room.

          Scenario 6: There is a final order of visitation which includes weekly visits here in New York and the custodial parent relocates to California without the noncustodial parent’s consent or the court’s approval.  The custodial parent does not send the child or bring the child to New York for the weekly visits (it is too costly) so the noncustodial parent can not see the child unless he/she goes to California.

          Scenario 7: There is a temporary order of visitation granting the noncustodial parent alternate weekend visits and the custodial parent refuses to either make him/herself available for the transfer or bring the children to that parent for the visits.

          Scenario 8: There is a final order of visitation permitting unsupervised and uninterrupted visits between child and noncustodial parent, which denied the custodial parent’s request for supervised visits.  The custodial parent insists that either the other parent visits with the child at his/her home or neighborhood, that he/she accompanies them on their visits, or he/she calls the child incessantly  to get a minute to minute account of where they are or what they are doing.

          Scenario 9: The temporary order of visitation clearly states that when the custodial parent picks up and drops the child off with the noncustodial parent, that his/her paramour is not to be present.  When that parent does the transfer, he/she has their significant other present more often than not.

          Scenario 10:  The final order indicates that the custodial parent must provide medical, school, daycare, extracurricular activities, etc. contact information to the noncustodial parent within a reasonable time period.  Several months have gone by and the other parent still has no idea where the child goes to daycare or who the child’s primary care physician is.

          These are some of the examples of outright violation of the court’s order.  In each of these scenarios either parent filed a petition for child custody, sole or joint and/or for child visitation.  As a result, the court felt that it was in the best interest to grant custody, visitation and some specific directives with either order, that either parent must abide by.  Either way, the court order must clearly delineate the conditions and directives that must be adhered to before the non-violating parent may avail him/herself of many if not all of the legal consequences.

          The list of penalties include the court allowing more visitation or access, visits going from supervised to unsupervised, the entertainment of modification petition requesting a change of custody, suspension of child support, monetary sanctions, imprisonment and attorneys’ fees.  However, the punishment typically must fit the “crime”.  So in other words, in Scenario 1, for example, the court may not necessarily entertain a change in custody because the custodial parent continuously tells the child when to hang up the phone.  The interference in the noncustodial parent’s visit must prejudice his/her significantly to warrant such a consequence and in that scenario the other parent still has some contact.  Conversely, however, a petition for a change in custody where the custodial parent willfully violates  the court order will considered as a factor when deciding what is in the child’s best interest.

          I have represented either parent or child in each of these scenarios and can discuss further what the courts do and how these are handled based on practice, procedure and the law.  Next week I will discuss the penalty likely imposed by the courts in each scenario.

          Feel free to contact my office to discuss your child visitation, child vustody or other family law matter with me.

This day is set out to spread the word about Parental Alienation.  Parents all over the country will be showing up at Family Courts at 10:00 A.M. with pictures, letters and protest in support of this very widespread and understated epidemic.  Parents are encouraged to be vociferous in telling their stories, contacting their politicians, educators, social service workers, mental health professionals and the media. 

Since I recently devoted an entire month of blog entries to this issue I will only provide tips for dealing with parental alienation here.

Tips for parents facing Parental Alienation: 

1. Try to establish a  parenting plan that sticks to a plan and minimizes stress on the child.  

2. Go to court only if reasonable resolutions are impossible with the other parent.

3. Try to deal with the child with patience, understanding and a firm hand.  Do not tolerate disrespectful behavior but do not scold the child harshly.

4. Talk with the child in an age appropriate manner, explaining the affects the changes has on everyone’s lives. 

5. Alllow the child to explore his/her imaginations, interests, ideas, etc.  Build child’s self-esteem, while teaching/learning (and having fun) is a mutual process.

6. Stay abreast of the child’s life, and staying involved in school and athletic/ hobbies/ cultural/artistic interests. Volunteer in church, school, etc.  However, be careful not to overstep or overreach. 

7. Develop support with people who can influence children’s positive recognition of who you are and what you are all experiencing.  Encourage relationship between extended family members and child.

8. Do research in effort to understand developmental stage of children and attachment needs/separation- normal anxiety issues complicates child’s approach-avoidance response to separation/attachment and independence/dependence.  Recognize and accept limitations in how relationship is expressed with limited or awkward affection and emotional withdrawal/outbursts.

9. Practice non-confrontational ways to hone in on listening skills with children and others. Practice peacemaking solutions.
10. Hold other parent accountable in consistently documenting behavior and consulting with your attorney (who should get the law guardian or attorney for the child involved).

11. Know your rights and insist that they are not violated (particularly in court).

12. Maximize use of parenting coordinator, if available by the court.  Inquire about outside agencies.  ecessary appointed by the court, with arbitration/mediation power.
13. Find a therapist familiar with PA/PAS cases and legal process and suggest to court if applicable.  Explore Individual therapy for parents to cope with learning and taking responsibility for the individual/family problems in past.
14. Maintain some sort of  independent communication if possible using cell phone, instant messaging, letters, and photographs, gifts, etc. for any occasion.
15. Never blame children.

          Can 432 children be removed in New York without “actual” proof of child abuse?  Well that depends.  In Texas history, in U.S. history for that matter, it has never occurred.  In today’s climate where children are still suffering immeasurable harm and irreparable damage as a result of physical, sexual and emotional abuse, the states’ agencies have a very challenging responsibility even when abuse is a mere suspicion.  Most, if not all, players in the field of child protective services are encouraged to err on the side of caution.  This means that even a telephone call from an anonymous caller alleging any sort of child abuse will usually result in child protective services taking action.
          However, the question is not if the agency should act.  The issue becomes how far should the authorities go and if the means justifies the ends.  In New York, as in many other states, the standard for “emergency” removal is if the children are in “imminent danger” or “serious harm” to their life or health if they are to remain in the home.  There is a mandated procedure that Child Protective Services (“CPS”) or Administration for Children’s Services (“ACS”) must follow when there are reports of child abuse/neglect.  The procedure is that once the agency receives a report of child abuse/neglect, they have 24 hours to investigate.  Not all reports are true, since it is not only teachers, doctors, social workers, etc. that report alleged abuse.  Family members, neighbors, etc. also report allegations of abuse and their intentions are necessarily the protection of the child.  In that, the agency must go to the home, speak to the parents (or persons legally responsible), the children, school personnel, doctors, mental health professionals, etc. in an effort to determine if there is any merit to the allegations.  If the agency is convinced that there was in fact child abuse/neglect, then they can either a)  offer the family services and allow the child to remain in the home; b)  they can have the parent voluntarily place the child with a relative or foster care until the circumstances warrants a return to the home; c)  they can have the parent get an order of protection, in domestic violence cases, against another and allow the child to remain in the home; d)  they can remove the child and then file a petition in court or e)  they can file a petition in court and then ask for removal.
          Here we will discuss the most extreme case, where the child is immediately removed from the home, either before or after filing of the petition.  Before the child is removed the agency must make every reasonable effort to avoid removal, which is why in some instances services are first offered to the family and then the child is removed.  If the judge is convinced that there is “imminent risk” if the child remains with the parents or persons legally responsible, then he/she may order removal.  There are several factors the judge will consider when making this determination.  These factors include: history of the family, prior allegations of abuse/neglect, criminal history of either parent, just to name a few.  There are instances, however, where the child is removed from the home before the judge even hears the allegations.  In this scenario, the agency must file a petition in court within 24 hours of removal and provide written notice to the parents to appear in court on the next business day.  It is at this point that the judge will determine if removal was necessary, or if “imminent danger” existed warranting the removal. 
          Once the child is removed, the parent or person legally responsible has the right to appear in court and request a 1028 hearing.  The purpose of this hearing is to have the agency present the evidence they have justifying the removal.  The parents will then have the opportunity to challenge the evidence and make a request that the child be returned.  If the judge is not convinced by the evidence presented that the child is in imminent danger, he/she can direct that the child be returned to the home while the case itself proceeds to either trial or settlement.  As a precautionary measure, however, the judge can order that ACS monitor the family while the child is at home, which typically requires a caseworker working with the family to ensure that services are offered and complied with.

          The 1028 is the crucial moment for determining if emergency removal was justified.  At this hearing, the caseworkers, mental health professionals, parents, children may all be called as witnesses to justify removal or discredit the allegations of abuse or neglect.  In each case, the witnesses bearing the most “credible” evidence supporting the abuse allegations would be the ones testifying.  The burden is on the agency to prove by “preponderance of the evidence” that child abuse or neglect did in fact occur.  And although third-party or “hearsay” testimony is not admissible in court for its truth, hearsay is admissible in child abuse/neglect cases for the purposes of proving “imminent danger”.  Consequently, someone with firsthand knowledge or who was given firsthand knowledge can testify on behalf of the agency, about the occurrence of abuse/neglect for at this stage.
          So in essence, if the removal of 432 children had occurred in New York, based on an anonymous tip via telephone, unless someone else can testify that based on their own knowledge those allegations have merit, there could be no justification for the court not returning the children. A lot of what a judge decides to do is determined by the social or legal climate surrounding the case.  What the Texas authorities based their finding on was the fact that there were several young girls who had children, which infers that they were either physically and/or statutorily raped.  However, that is not necessarily the case.  Here, for instance, if the father of that child is not older than 17 years or the young mother was married with their parents’ consent, then the presumption of rape, constituting child abuse, can be rebutted.  The difficulty is that in sexual abuse cases, the children are typically the only witnesses.  Thus, any statements made by the child out of court may be admissible, even if it is not “corroborated” by other supporting evidence, for the purpose of removal.  Corroboration evidence may be provided in different forms, expert testimony of those who conducted interviews or behavioral assessments of the alleged victims or medical testimony, both were used in the Texas case.  As an aside, the Fourth Amendment protection against unreasonable search and seizure does not apply in Family Court, warrantless searches or lack of probable cause does not invalidate the removal.

         As an advocate, attorney and law guardian I do ethically, morally and professionally believe that the authorities must err on the side of caution in child abuse cases.   However, I also believe that individuals’ rights need to be regarded and not infringed upon without due process. The children and their families should have been afforded a case by case analysis instead of being subjected to a collective effort by the agency.

          Feel free to contact my office for a free consultation to discuss your child abuse/neglect case or any other family law matter.

         The most extreme forms of child abuse are physical abuse and sexual abuse.  Unlike other forms of child abuse or neglect, which may be a mere instance of ignorance, physical and sexual abuse are typically forms of aggression, hatred, power, control, disrespect, etc.  These most complex types of abuse are highly charged in Family court because of the criminal component, the impact on child custody and visitation and the social stigma associated with it. 

         A parent can inflict physical or emotional harm intentionally, recklessly or negligently but not accidentally.  The injury, however, must be a serious disfigurement, protracted impairment of physical or emotional health or protracted loss, impairment of bodily organ function or creates a substantial risk of such injury or death. Failure to act can also lead to a finding of child abuse. For instance, less serious injuries can often arise to the level of physical abuse when the condition was left untreated and becomes life threatening.  Or when the parent allows another to commit child abuse or neglect against their child, this too can lead to a finding of child abuse.  Proving such abuse usually takes the testimony of expert witness, which at times creates problems when it comes down to a battle of the experts.

          Emotional abuse is a form of child abuse when physical harm that is not as serious, causes long term emotional impairment by causing or creating a substantial risk of protracted impairment of emotional health.  Although corporal punishment is legal and not necessarily considered child abuse, the repeated use of corporal punishment can arise to the level of abuse.

          Sexual abuse is obviously when a parent allows or permits or encourages a child to engage in sexual acts or acts of sodomy.  This is most difficult because it has to be the child that corroborates the sexual abuse.  Sometimes children are afraid, have inconsistencies in their stories, experience emotional and psychological trauma or have pressures from family, all of which makes their testimony somewhat unreliable. 

         Treatment of child abuse victims and perpetrators in these instances is a lot more in-depth and intensive.  Once the parent has had allegations of such abuse lodged against them, the tone of every instance of the case (and related cases) becomes subject to higher scrutiny.  Intensive therapy, individual counseling, psychiatric evaluations and testing, prevention classes, orders of protection, restricted or limited child visitation are amongst the many devices implemented to safeguard the child from future harm.  And although rehabilitation is often the aim, these objectives do little to address actual prevention. 

          Awareness is a key element.  Getting the word and getting educated on the signs of abuse can minimize the proliferation of child abuse.

          Feel free to contact me to discuss your child abuse, child neglect or other family law case.