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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

A Double Standard

The law seems to support non-custo­dial parents in their quest for visitation rights, but does little to help them enforce these rights. The Florida Coul1 of Appeals made a strong statement in this regard: "The custodial parent may not merely remain neutral with regard to visitation, but has an affirmative obligation to the non-custodial parent 'to encourage and nurture the parent-child relationship." (Gardner v. Gardner 494 So.2d 500). This implies that the custo­dial parent must do everything possible to ensure the non-custodial parent gets all the visitation possible.

The same court in another case stat­ed that it is in the state's interest to restore a meaningful relationship between the children and the father. The case involved a mother who moved from state to state without telling the father, and encouraged the children to hate the father. The court ordered the mother to encourage the children to have feeIings of love for the father, and it determined that this was not a burden on her First Amendment rights (Schutz v. Schutz 581 So.2d 1290).

Nonetheless, when each visitation attempt is frustrated by the custodial par­ent, the non-custodial parent must bring the matter back to the court that issued the original custody order. Then that par­ent must attempt to convince the judge to sanction the custodial parent for inap­propriate behavior under the order.

All too often, however, the judges are overworked and not eager to deal with this type of motion. Even if they hear the matter, the judge won't have to change the existing custody order if the custodial parent apologizes and promises to obey the original order.

A No-Win Situation

Suppose a non-custodial parent arrives at the child's door at 5 p.m. on Friday with the original court order in hand, stating he may have custody starting at 5 p.m. on Fridays, and is refused visitation. What will happen if he asks the police to assist him?

The police probably can't do any­thing, says Lt. John Jones, the training commander at the Alachua County Sheriff's Office in Gainesville, Fla.

The deputies will often respond in order to prevent a domestic dispute from escalating, he said. "But usually, we try to tell them on the phone that our hands are tied and we can't help them enforce a civil custody order," Jones continued. "He's not trespassing because he has an order saying he can be there. And she's not committing a crime we can arrest on."

In another case, a father who was denied visitation on a number of occasions finally decided to take a law enforcement officer along with him when he went to visit the child. The court held this against him, how­ever, when it learned the man's wife told him in advance that the child was ill. With prior notice from the mother, the judge said the father should not have made the trip in the first place (Shoemaker v. shoemaker 812 SW2d 250).

The only thing a non-custodial par­ent can do is file papers to take the matter back to court. At the hearing, the non-custodial parent can attempt to have the custodial parent held in con­tempt of the court order. But in reality, this is very difficult because it comes down to his word against hers (the child was sick, etc.) and judges are reluctant to put a mother in jail. Usual­ly the parties are advised to work things out, attend mediation or obey the custody order in the future.

Finding a Workable Solution

Occasionally the court will support the non-custodial parent by ordering extra time-sharing or by re-writing the original visitation order. In one case (Fishman v. Fishman), the court found the mother in contempt of the visitation order and required her to pay the father's attorney fees related to the visitation enforcement proceed­ings. In cases of extreme abuse of visitation, it is possible to get an order for a change in custody.

Although police do not have the authority to enforce civil orders, they can appear to prevent an assault, public disturbance or property damage.

"Unless the order specifically directs a law enforcement officer to take some action, we can't do any­thing," says Capt. Buddy Crevass, the officer in charge of civil court ser­vices at the Alachua County Sheriff's Office in Gainesville, Fla. "We tell people what we can and can't do. And although they usually aren't very happy about it, they understand."

Law enforcement officers who respond to a call where visitation is refused should carefully read the cus­tody order to see if there is anything he or she can do.

Non-custodial parents who are refused visitation should go back to court and attempt to get a revised order. The wording in the new order should specify that a custodial parent who does not immediately comply with visitation orders can be taken into custody.

Then in court, the custodial parent must show cause why he/she should not be held in contempt. This would give the non-custodial parent more power to gain visitation and also give police offi­cers more leverage to help non-custodi­al parents who still care.

Donna Lea Hawley, a former practicing attorney, is president of Paramount Training Center.

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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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