Last week I started a discussion about the implications of court-ordered child visitation. My initial entry layed out different situations that constituted violation of child visitation orders.  Although the custodial parent may think what they are doing is rationale, justified and even something within their right, in these particular instances they are violating a judge’s directive.

          This week I will go through each of the scenarios and discuss how the court would probably handle the violating parent and attempt to restore “fairness” or grant redress for the noncustodial parent.  I say “attempt” because in most instances, there is no way to make up for missed time, opportunites to bond or chances to re-store stability between the child and his/her noncustodial parent once any or a combinations of these events occur.

Here are the scenarios and the court’s likely responses:

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. 

Court’s Response:  Typically, the court would not see this as a grave defiance of its order since the child is actually still having some contact with the other parent.  The court may admonish the custodial parent, at times repeatedly, to allow the child to be alone while talking to the other parent.  But this is hardly the basis for the more extreme forms of punishment.  Since it is a temporary order, however, it does permit the court to get an immediate sense of how the custodial parent will behave in the future. 

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. 

Court’s Response:  Although this is not an extreme defiance of the court’s order, it still warrants a little more than an admonishment by the judge.  When the visitation order specifies that the custodial parent is not to be present, it is more often based on concerns raised by the noncustodial parent or his/her attorney.  These concerns may include the emotional impact on the child because of attachment issues, the safety concern of all or one of the parties because of conflict between the parents or merely to facilitate an easier transition.  Thus, continued violation of this particular order may raise other issues regarding the custodial parent’s real interest and ultimate ability to co-parent. 

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. 

Court’s Response:  Now this sort of situation is teetering on the edge of being grossly violative.  In this scenario the visits are not taking place and that is a serious problem.  Initially the court will give a firm warning.  However, once those warnings are ignored then there are contempt sanctions that can be and will probably be imposed. The noncustodial parent may face monetary fines, costs (i.e. attorneys’ fees), community service, even incarceration.  Unfortunately, in this case there is an apparent issue with the relationship between child and noncustodial parent, hence the need for therapeutic visits, because otherwise there would be a real threat of change of child custody.   

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. 

Court’s Response: When only a temporary order is in place it keeps the case on the court’s calendar longer because the visits are not going smoothly, which ultimately defies the objective to increase time between child and noncustodial parent.  The visits should not not occur because of the custodial parent’s failure to pay nor should the progression of the visits be stalled because of this.  So the noncustodial parent can either pay the custodial parent’s share (and seek reimbursement or adjustment) or the court can change visits from supervised to unsupervised day 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. 

Court’s Response:  Here again is another situation where the custodial parent’s ability to parent is called into question.  Depending on what the substance of the information is or the medical treatment required, the willful lack of communication can be a profound threat to the child’s safety.  The court, with a focus on the child’s best interest, will certainly threaten to report or will report, the custodial parent to Child Protective Services as a result of such antics. 

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

 Court’s Response:  Here is probably the most egregious forms of violation.  This constitutes a deliberate act of interference with the contact between child and the noncustodial.  Ordering a change of custody is a very likely reaction by the court in this scenario.  However, if the noncustodial is not in the position to assume custody then the court may have the custodial parent pay all travel costs for visits to New York, grant extended visits during vacations and holidays and may even adjust child support in favor of the noncustodial parent.  None of these measures are mutually exlusive with the court’s authority to impose contempt charges, including the most extreme ones. 

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. 

Court’s Response:  This, like scenario 6, is one of the most egregious.  However, one difference here is that the order is temporary, which means that the case is still before the court.  The visits are not occurring because of deliberate acts of the custodial parent and this is an explicit violation.  Therefore all of the measures applicable there are certainly justified here. 

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.  

Court’s Response:  The court is not inclined to do too much here but modify the order.  The modified order may be more and more specific, i.e. if and when the custodial parent can call during the visits.  This sets the custodial parent up for being subjected to a contempt of court if there is continuous violation once there is a clear violation of the specific instructions.  

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. 

Court’s Response: This is another situation where the visits are actually occurring so the violation of that part of the order is not as grave as some of the others.  However, if the paramour’s presence stifles the exchange then the court may consider this a factor in the event the noncustodial parent seeks child custody. 

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. 

Court’s Response:  Communication between parents, or lack thereof, is an indication of one’s ability to co-parent and thus will be given weight if the noncustodial shall petition for child custody.  However, if that parent has no interest in seeking full child custody, the custodial parent may face contempt by the court. 

          Each of these responses vary by court jurisdiction, the judge, the status of the case and the order, the particular facts of each the case, i.e. history of domestic violence, child abuse/neglect, previous violations, the impact on the child, etc. and whether the parties are pro se or represented by attorneys. The measures imposed may be exhaustive, going from the minor to the more severe in any one scenario.  The judge may start out being lenient but may become more harsh if the violations continue.  Nonetheless, the relief requested by the noncustodial must justify the violative behavior.  For instance, one should not expect that a court would impose contempt of charges and imprison the custodial parent in Scenario 1.  At the same time, however, sparing the custodial parent imprisonment may be the route the court takes, in situations like Scenario 6, when other concerns, like the children’s emotional and psychological well-being are raised.

         All of these scenarios are clear examples of interference, while some are closer to parental alienation.  Parental alienation must be handled somewhat differently by the court, the attorneys and the noncustodial parent because of its implications.  Although interference is a serious enough issue, it does not necessarily require the same efforts by the courts and the use of its resources as in parental alienation.  In either circumstance, if visits are being interrupted, delayed or restricted, the impact on the child and the noncustodial parent warrants the court taken affirmative measures to address this.

         One major issue I have in many of these cases is that the custodial parent knows more often than not, that he/she could get away with this behavior.  They typically push the limits believing  that because they are the custodial parent, they have limitless authority and the “ultimate” right to do whatever they want, including violating the court’s directives.  My challenge is helping to prepare my client, the noncustodial parent, for the most profound option, petitioning for child custody.  I know that every one of my clients is not in the position, emotionally, psychologically, financially, to take custody of their child.   However, it is somewhat defeating when we continuously go to court making the same complaints and the court only “slaps the wrist” of the custodial parent.  Furthermore, it is frustrating to know that an act that may initially appear to be “trivial” by the court, may be an indication of something much more serious.   Nevertheless I make my formal requests and I do so consistently.  

          Feel free to contact my office to discuss your family law issues.