Suing for Withholding Child Visitation

When a child’s parents are divorced, separated, or otherwise not together, the parents can ask the family court to set custody and visitation rights.

A custody arrangement determines which parents have primary custody of the child or whether the parents have joint custody. When one parent is the primary custodian, the other parent, the non-custodial parent, may ask the court to establish visitation rights. Visitation rights give the parent the legal right to see their children.

(Unmarried fathers must establish paternity or be on the birth certificate to be afforded child visitation rights. If there is a question as to who is the legal parent of one or more of the children, parentage will have to be established first (usually done by a DNA test)).

The court will give the parents time to work out custody and visitation plans that suit them and will only interfere if the parties cannot decide. In a best-case scenario, parents will work together to create a plan that both agree upon and then submit to the court for approval. In cases where the parents cannot come to a mutual decision, the court will take into consideration various factors that will help to determine where the child’s best interests lie and will base its decision on those factors. These factors include:

• The emotional ties and relationships between the child and their parents, siblings, family, and other household members
• The capacity of the parents to provide a safe home and adequate food, clothing, and medical care
• The mental and physical health needs of the child
• The mental and physical health of the parents ƒ
• The presence of domestic violence in the home
• Alcohol or drug abuse by either of the parents
• If the children are at a mature age, the children’s wishes

Whether decided by the judge or agreed upon by the parents, in the end, a court order will be issued officially establishing the custody and visitation rights of both parents. Should either parent disrupt the outlines of this document, such as the custodial parent withholding visitation or the non-custodial parent not returning the children on schedule, they are considered to violate this court order. This is important to understand: the arrangement for child custody and visitation is not simply a contract or agreement between the two parents. It is a court order, and violation of it will be punished as such.

What is My Recourse if I am Denied Visitation Rights?

If the custodial parent denies the non-custodial parent their court-ordered visitation according to the established schedule, the non-custodial parent may have to resort to legal means to assert their rights. It is not wise for them to try to use other methods to see their children, such as taking the children without the other parent’s permission. They don’t want to face potential charges of parental kidnapping.

If visitation rights are denied, especially if denied regularly, the non-custodial parent should do their best to document any time this occurs. They should record the dates visitation was supposed to start and end, the dates it started and ended, any reason the custodial parent gave for the denial of visitation, and what the truth of the matter was. These records will prove very useful if the matter goes to court.

One important thing to know is that the court’s order for visitation may not be ignored, not even if the non-custodial parent is not paying child support. Regardless of the relationship between the parents, the custodial parent should not withhold visitation from the non-custodial parent for any reason. While the custodial parent may be doing so in retaliation for something the non-custodial parent has done, they often do not realize that it hurts not only the non-custodial parent but also the children involved in the situation.

If the custodial parent withholds visitation, the non-custodial parent may want to seek the assistance of a family lawyer. A lawyer can contact the custodial parent or their representative to resolve the matter without going to court. One of the advantages of working with a lawyer is that unlike the parties themselves, who may have emotional issues that make it difficult to negotiate calmly, the lawyers for each side will be able to remain calm and discuss the points of law involved, not the historical disagreements between the parties.

If the discussions and negotiations are unsuccessful, the only recourse may be to file a petition in court to have the visitation rights enforced. A lawyer can do this for the parent who is seeking visitation. It may also be possible to have the police enforce an agreement, although this will likely not help the relationship between the parents.

Denying visitation to the non-custodial parent may place the custodial parent on dangerous ground. Visitation disputes can give rise to changes in childcare arrangements that weren’t well foreseen by the custodial parent. For example, if the custodial parent has not been respecting the court’s orders, the court may award the non-custodial parent more time with the children, not less.

Moreover, a court may review the custody arrangement and take away primary custody from a parent who has refused their child’s other parent the visitation rights they are legally entitled to. This is because, in part, it is considered bad parenting to interfere with the children’s time together with the other parent.

While uncommon, it may also be possible for the parent denied visitation rights to sue the other parent outside of family court. This suit may be based on several grounds:

• Intentional infliction of emotional distress: In this case, the non-custodial parent must show that their distress resulted from the intentional or reckless actions of the custodial parent;
• Intentional interference with visitation rights: When the custodial parent purposefully refuses to observe the visitation agreement; and
• Breach of contract: The parents are both contractually bound by the child visitation agreement, so if it is violated, it may be possible to sue for breach of contract.

Is it Possible for a Rapist to Get Visitation Rights?

Approximately 30 states allow for the parental rights of a rapist to be terminated. This means, of course, that in about 20 states, laws do not allow for termination of a rapist’s parental rights.

Furthermore, even in states that do allow for termination of rights, some still require that the rapist be convicted of the crime of rape to have their parental rights terminated. Currently, no federal law speaks to this issue, so as of now, we are left with the diversity of state law on this issue.

Do I Need An Attorney to Help with My Visitation Rights?

It would be wise to work with an attorney if you are experiencing a problem with your visitation agreement. Although you may file your own petition in court to have a visitation agreement enforced, it is to your benefit to have a lawyer on your side, particularly in a matter so important as being able to see your children.

A child visitation lawyer in your area can explain your rights and possible avenues of recourse so you will know your options. The lawyer will also have an understanding of state law on child custody and visitation, and this will improve your chances of a favorable outcome.