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.