Unit 323 John and a unit to cover, respond to a 415 protect the peace ... Mr. Nichols says his former wife will not let him pick up his children. He has a court order for visitation and wants her arrested." Ofc. David Farley, who has contacted Nichols on previous occasions, once again responds to the domestic-related call. But he realizes his hands are tied until the dispute is resolved in court.
The law may support the non-custodial parent's right to visitation, but it is usually very time consuming, expensive and difficult to enforce. Usually the custodial parent is the mother; the non-custodial parent is the father who has visitation rights in the custody order. Often the father's problems start with the wording of the custody order, which is greatly compounded by the mother's lack of cooperation. Unless there's been child abuse accusations, the mother's actions are usually aimed at hurting the father. But in the long run, it's the children who suffer.
Excuses, Excuses, Excuses
Of course, not all cases have problems. Some non-custodial parents never want to visit, contact or financially support their children. Although this generally isn't a legal reason to prevent visitation, it compounds the bitter feelings between the parents and the problems with visitation.
Custodial parents can frustrate visitation rights by:
- disagreeing as to what is "reasonable" visitation, when the custody order merely states that there be reasonable access to the non-custodial parent;
- constantly refusing to let the child go with the non-custodial parent-even when a set time is stated in the custody order;
- neglecting to take or allow the child to go to the predetermined place for pick-up by the non-custodial parent (i.e., making the child stay home "sick" from school, not taking the child to daycare that day, etc.);
- phoning immediately before the pick-up time and saying they have other plans, the child is sick, etc.;
- disregarding or ignoring requests for the child to attend special events with the non-custodial parent;
- ignoring the time schedules and arriving home late on pick-up day; or
- turning the child against the non-custodial parent so the child refuses to allow visitation.
In the Hands of the Court
With visitation rights, everything starts and ends with the court order. According to the law, the courts must consider "the best interests of the child" to determine the primary residence. This is generally based on emotional, physical, social factors. In some places, however, the attitude of the custodial parent toward the non-custodial parent is a factor.
According to Florida statutes (s. 61.13), the court must consider "the parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent."
It is also a universal principle that the right of visitation derives from the right of custody and is controlled by the same legal principles (Jackson v. Jackson 185 A.2d 725). This means that a non-custodial parent has the same rights in regards to the child. But it does not mean that the non-custodial parent has the same legal means to enforce a visitation order as the custodial parent has to enforce a custody order. A custodial parent can have law enforcement assist in recovering a child held by a non-custodial parent as an abduction or "kidnapping," but the reverse is not true. Likewise, a custodial parent has the right to an order of habeas corpus against a non-custodial parent who retains possession of the child wrongfully, and the reverse is not available.
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