Interference with Visitation

In a few states, statutes allow the court to consider in the initial custody decision which parent is likely to allow frequent and continuing contact with the other parent. Where the interference has been persistent or has involved hiding the child, the court may even transfer custody from one parent to the other. As a general rule, however, the court will not settle a dispute over visitation by transferring custody because modification may end up disrupting the child’s stable home environment. Instead, the court may choose to enlarge the visitation time allotted to the noncustodial parent.

Where the noncustodial parent seeks to enforce rather than modify visitation rights, a contempt action may be brought against the custodial parent. The contempt procedure takes time and rarely accomplishes much. Courts are often reluctant to put the custodial parent in jail because of the negative effect on the child. Methods used to enforce visitation rights include contempt, the posting of a bond by the violator, and the award of attorney fees.

Relocation of Custodial Parent

Many custody orders include travel restrictions that prohibit the custodial parent from removing the child from the state. These provisions help to ensure the integrity of the parties’ original agreement, to assure thoughtful consideration of the impact of any intended move, and to protect the noncustodial parent’s rights to visitation. Where travel restrictions exist, the custodial parent seeking to move must obtain a modification of the original decree. The modification proceeding gives the noncustodial parent the opportunity to restructure the visitation arrangements or to file a motion for modification of custody. Even without a travel restriction, the court may find that a decree granting a noncustodial parent weekly visitation impliedly prohibits a parent from moving without going back to court.

Reasonable travel restrictions inserted in custody decrees to serve the child’s best interest have been upheld against attacks that they violate the custodial parent’s right to travel. Some courts have upheld restrictions limiting residence to within a state’s border, but not to a particular location within the state.

One of the major arguments against allowing a move out of state is that the visitation rights of the noncustodial parent will be seriously impaired. The fact that there will be more transit time or more expenses involved with visitation does not by itself, preclude the move. Some courts weigh the benefits to the child and the custodial parent in an increased standard of living resulting from the move against the detriment caused by the reduced visitation.

Courts have increasingly given deference to the custodial parent’s decision to move, so long as the reason for the move is not to defeat the other parent’s visitation rights. Some states have recognized a rebuttable presumption in favor of the custodial parent’s decision to relocate. If the court allows the custodial parent to move out of state, at the very least the court will have to modify the existing visitation arrangements. The most extreme remedy to ensure contact is to change custody to the parent who remains in the state.

Abuse of Visitation

If the noncustodial parent acts in derogation of the custodial parent’s rights to custody, the court may restrict or suspend visitation in an appropriate case. The problem of interference with the custodial parent’s rights, particularly in cases involving child snatching, has been a serious concern to both legislatures and courts. In some situations criminal proceedings, civil actions, or statutory tort actions may be brought against the offending spouse.

Withholding of Visitation or Support

Most courts refuse to let a parent use support as a tool to secure visitation because provisions for support and visitation are independent. Likewise, courts refuse to allow the custodial parent to withhold visitation to obtain support because it is in the best interests of the child to visit his or her other natural parent.

Some courts have recognized there is a relationship between nonpayment of support and withdrawal of visitation. If the custodial parent is denying visitation, the noncustodial parent may seek a modification of the support order. The courts are especially concerned in cases where the custodial parent intentionally interferes with the other parent’s visitation.

In exceptional situations where a noncustodial parent willfully and intentionally refuses to pay support, the court may revoke visitation rights. In any case, civil contempt proceedings can be invoked for the failure to pay support and the failure to abide by a decree specifying visitation.

SOURCE: Lexis Nexis