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.[PAGEBREAK]
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.