How many times have you witnessed parents who are in constant conflict regarding shared custody? In the United States of America, there are approximately 900,000 divorces annually, or about one divorce every 36 seconds. The average length of marriage in America is eight years, during which time married couples may have expanded their financial, moral, and emotional responsibility to include one or more children.
Separation and divorce present new issues of custody, which have reaching impacts on both financial and emotional well-being. In this article, we’ll discuss why obstacles to visitation occur (despite formal court instructions) and how couples can work together to reduce volatility in the post-divorce environment, and conflicts over visitation rights for parents and children.
Maintaining a Positive Co-Parenting Arrangement
No one said that shared parenting after a divorce would be easy. Certainly, there are emotions between former spouses that can make it more difficult to be peaceful on an ongoing basis. A failed relationship can place children in a position of “push pull” between disgruntled parents, who need time to adjust to new living and financial arrangements. Divorce is difficult on families, but exceedingly difficult on children.
Striking a health balance and peaceful relation to your former partner offers several advantages, not the least of which is to avoid placing the child or children in a state of emotional conflict. But parents who are able to co-parent peacefully also save themselves the legal costs of filing court complaints and custody amendments, as well as other fees and expenses. While this is the most ideal of all situations, family law specialists agree that conflict is more frequently the result, which requires court-instructed custody arrangements and guidelines, which vary by state.
Rights for Non-Custodial Parents Are Protected by Law
In the United States, the scope of parental rights depends on whether the parent has legal custody or physical custody of the child. The parent who is awarded primary custody and who is responsible for providing day-to-day care of the child has more privileges bestowed on them by both federal and state laws.
A non-custodial parent is frequently a father, as the law has an understandable bias to keep young children with their biological mothers for primary care. This is in no way to diminish the important role that birth fathers have in the lives of their children, and in some cases, the father may be a better parental guardian for the child. In most cases, however, the state aligns with the rights of the biological mother first, as the custodial guardian, with few exceptions.
A custodial parent is awarded control over the child, and is responsible for providing a residence, food, clothing, care and essentials, including education and healthcare. If a custodial parent is employed and has access to group healthcare, he or she is required to provide healthcare coverage to the child or children. However, if no employer-based healthcare plan is available to the custodial parent, the responsibility of providing adequate insurance coverage is passed to the non-custodial parent. Physical custody is awarded to the custodial parent.
Non-custodial parents may be designated if the child or children were born “out of wedlock” or outside the rights of marital provisions. To avoid disrupting the life of a child, courts prefer to designate a custodial parent to allow the child the security of spending most of their time in one home, and one school district. However, in some cases where parents are divorcing, a split of custodial responsibility may be requested, where the child alternates weeks with 50% of their time spent with each parent equally, splitting the physical custody of the child.
It is important to remember that court-ordered visitation is protected by law, whether the non-custodial parent pays financial support or not. It is also important to note that a custodial parent who prevents a non-custodial parent from accessing visitation is doing so illegally, and can be called to court for non-compliance with the agreed visitation arrangements. Parents who are unwilling or unable to pay child support may not arbitrarily have their visitation rights revoked by the other parent.
Legal Steps for Parents Who Are Unlawfully Denied Access to Visitation
A negative situation can turn far worse, with legal consequences, when non-custodial parents try to argue or force visitation against the wishes of the other parent. While visitation rights are protected by law, a custodial parent can report a child as abducted if the child was removed from the school or residence without permission. That is one example of how disputed custody and visitation rights can escalate into a serious legal problem for both parents.
Parents who have been denied court-ordered visitation rights with their children should immediately consult a family law professional. In addition to legal consultation, the non-custodial parent should:
Try talking to the custodial parent to resolve the problem amicably.
Document all communication with the custodial parent, and attempt to do so in writing. It is illegal to record someone unknowingly on a telephone call; however, text messages and emails are legally admissible in court. Try to resolve the dispute in writing, and retain copies for court evidence.
Record dates and times of denial, and the attempts made to follow through with visitation arrangements. Even if the custodial parent has refused to allow the child to visit, keep your scheduled date and times and “show up” to pick up the child; document the refusal of the other parent to provide access.
A family law professional will assist parents in taking the matter to court to resolve the dispute in visitation orders. If repeated problems with access occur, the court can also order a police or family services escort of the child on schedule for visitation with the non-custodial parent, to ensure that the court order is followed and that the parent’s rights are upheld.