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Enforcing Visitation Rights

The law may support the non-custodial parent's right to visitation, but it is usually very time consuming, expensive and difficult to enforce.

March 01, 1996  |  by Donna Lea Hawley

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.

Comments (7)

Displaying 1 - 7 of 7

francia hanson @ 9/5/2012 8:15 AM

where i sure go too someone help get visitation right or enforce my rights is at mother !!

Paul @ 1/4/2016 5:11 AM

I do know of a couple of States have criminal charges for custody interference my state is one 22-19-9 sdcl, but law enforcement is just to stupid to enforce it

jon deaux @ 2/22/2016 12:17 PM

In my state, Interference With Custody is a criminal offense, and my local sheriff's department is willing to enforce this law, but he city police department refuses because "it's a civil matter".

After the judge gave my ex-wife yet another verbal scolding at our last court hearing for denying me access to my children, I told my ex-wife that I was fed up with the courts inaction, and that I would have her arrested and prosecuted if she denied me access to my children or their school or medical records again.

I also have an undated emergency petition for a custody change because I will not leave my children in the care of her ex-boyfriend while she is in jail because he is so lazy that my ex-wife has to tie his shoes for him.

mike john @ 4/7/2016 6:00 AM

A lot of this article is totally wrong. The police are not really law enforcement officers, they enforce public policy, which is somewhat different; notwithstanding the blending of these terms in recent times.

There is no such thing as "bring the police" in a civil matter; even you presence is intimidating, and a act of official oppression- acting like you have the power to do something you do not- for example enforce a civil order.

Civil orders are ultimately enforced by contempt proceedings, including an arrest warrant enforced by a sheriff or constable. getting involved in a civil matter is a slippery slope because inevitably the police office tends to project his own ideas and values into the situation.

The police or even sheriffs cannot be directed to "help get custody" of a child, or to "enforce" a family court order. Police and Sheriffs do make arrests, either on probable cause or under a warrant. Otherwise, Police and Civil not not mix.

Bobby Duncan @ 9/20/2016 9:00 PM

I got 2 cases in Texas going. I am individually sueing the county sheriff and da. Under the code of criminal procedure each shall take a statement and enforce the law. Their is a lot more but lets see if the court lets them get by with immunity. My hope is the word shall is mandatory when taken in context to the statue. The Supreme Court in case law say they will not undermind legislative intent.I cannot find where anyone has filed this type of case.But if law enforcement is not enforcing the penal code, that is a individual choice not a discretionary option. I am pro se, lawyers will not take these type of cases because in reality they work for the court system an don't want to put judges or law enforcement on the line. We will see where this goes. I am on SSDI so they cannot get money from judgments. They hate me because hey they are not above the law. Most people give up, but not me and God has sent me to stand up. On the suit 2 judges, lawyer, sheriff and da were individually suited a week and a half ago. They have 21 days to answer. We will see wher it goes. Butts will be bared. Another thing i see on this issue is if police do not enforce court orders then the crime rate reported is bogus. Fight and never give up, your children are Gods gift to you.

Angels @ 10/13/2016 4:55 AM

To bobby Duncan, it's been 23 days today and I was wondering how any of the suits turned out? I'm in FL and have a friend in diar need. He's a dad trying to fight for his son and as of last night, the officer told him he wasn't going to file a statement or follow his visitation order. We need help, any suggestions?

Frustrated Parent @ 10/14/2016 9:42 AM

This is Extremely frustrating to me. My husband is the primary custodial parent of my step daughter who is 10. Her mother who is a prior drug addict and has a long list of criminal charges gets basic weekend visitation and split holidays. Monday OCT 10th she was supposed to return our daughter at 6pm. SHE DIDNT. WE called the police and got the "Sorry sir, this is a CIVIL MATTER, we cant help BS" The mother is refusing to respond to my husband, has pulled our daughter out of school, canceled doctors appointments and is not allowing contact with her. We have done a "Welfare check" To at least get eyes on her to make sure she is ok...and she is still in town. With the Welfare check they said she didn't appear to be in any danger so he could not remove her. In the meantime we have filed emergency contempt charges. I just want to know how long they are going to allow her to continue missing school before someone takes this seriously! Hoping this moves through the court fast!

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