Should We Criminalize Visitation Interference?

December 19th, 2011 by Robert Franklin, Esq.
Visitation orders should be enforced just as vigorously as child support orders.  That’s what this article says, and I agree with one exception (Beacon Journal, 11/6/11).

It’s a slow process.  Equalizing mothers’ and fathers’ rights in family courts should have been easy, but it’s proving to be anything but.  Most people seem to understand that children need two parents in their lives.  Once that basic concept sinks in, others follow.  One of those is that visitation orders should be enforced.

Actually, they should never be issued in the first place.  What family courts should do is issue orders about parenting time.  They shouldn’t name one parent as the custodial parent, the primary custodial parent, the managing conservator, the residential parent, etc.  Orders should simply say that Dad gets the kids every other week and Mom gets them every other week.  Or Dad gets them for the five weekdays and Mom on weekends. Or vice versa.

There should be no concept that one parent is superior to the other.  The order should be about parenting time.  Period.

But of course that’s not how things are done.  Courts are still stuck in the past when a father’s minimal visitation time was called an “award.”  Meager as that is – usually two days out of every two weeks – courts still refuse to enforce it in most cases, and for the most part, no one except the dads who are cut out of their children’s lives seems to care.

But Bob Dyer cares and he demonstrates a pretty firm grasp of the issues in his article on visitation.  Basically, he gets it.  He understands that fathers shouldn’t play second fiddle to mothers.  He understands that children need both parents and he understands the financial and procedural problems dads face in trying to enforce visitation orders.

It seems a non-custodial father named Matt Redovian contacted him because his wife was refusing access to their child.

If the mother of his son consistently defies a formal visitation order, shouldn’t he get help from the powers-that-be without having to spend a small fortune on legal fees?

As Redovian points out, when a man flatly refuses to pay court-ordered child support, the prosecutor’s office is on him like a bad rash, not only initiating felony charges but, in some cases, sticking his mug on billboards for all the world to see.

But when the shoe is on the other foot — a custodial parent blowing off a court order allowing the other parent to see the child every other weekend — nobody in authority rushes to that parent’s defense.

Here’s why: Our lawmakers have decreed that failure to pay child support is a criminal act, but failure to obey a visitation order is merely a civil matter. Therefore, neither the police nor the prosecutor’s office can do much about it…

Summit County Prosecutor Sherri Bevan Walsh says that’s one of the most widely misunderstood aspects of her job, and the misperception bothers her — although she understands why it exists.

“The two [child support and visitation] can be pretty closely related,” she says. “It’s not uncommon that somebody is not paying child support because they aren’t getting visitation, or somebody isn’t giving visitation because they aren’t receiving child support.”

So shouldn’t the legislature equalize the penalties?

“It’s a tough issue,” Walsh said. Decades ago, the law said that “if the woman was denying visitation, she wasn’t entitled to child support. I suspect that got changed because really the issue is, ‘This is child support for the child.’ So you’re punishing the child for the behavior of the mother.”

But isn’t the child also being unfairly punished if he or she is being deprived of a relationship with the father simply because the father and mother can’t get along?

“I think there’s plenty of data to show that if the father is actively involved in his child’s life, it is a positive thing for the child,” Walsh said.

There sure is. When both parties are fit parents, the obvious goal is to find a way for the child to have meaningful relationships with both of them.

That’s why the Summit County Domestic Relations Court in many disputes tries to guide families into a host of diversion, educational and mediation programs.

But in a case where the custodial parent simply refuses to cooperate on visitation, the noncustodial parent has to file a contempt of court motion, pay a $215 filing fee and usually another $600 to $750 for an attorney…

Next comes a hearing. But that can be a long wait. Such is the current backlog that someone filing tomorrow morning would wait at least a month for a hearing with a magistrate. Although the magistrate could rule immediately, in cases where the facts aren’t immediately evident, the proceedings could last another six to nine months.

It’s a good article.  Dyer grasps the fundamentals.  Most importantly, the full force of state enforcement is provided free of charge to mothers with child support cases.  Fathers with visitation orders must do it all themselves including paying the piper.  And by the time they succeed, if they do, months have passed during which time their children, if they’re very young, may have forgotten all about them.

His main argument is that visitation enforcement should be a criminal matter enforced, not by family courts but by prosecutors.  Usually I’m against laws that dream up new criminal offenses.  We already incarcerate too many people and our freedom of movement becomes more restricted every day.  But what should we do about family courts that show little sign of doing anything to improve their woeful failure to enforce visitation?  If they were going to do so, don’t you think they’d have done it by now?

Still, I don’t think criminalizing the matter is the way to go.  For one thing, child support is easy.  The money either has or hasn’t been paid.  If it hasn’t, prosecutors can make their case quickly with hard data.

But visitation isn’t the same.  He said she didn’t, she said she did.  Or she said she wasn’t able to.  She was sick, the car broke down, the dog ran away and she had to chase it.  Anything and everything will be cited as an excuse for failure to comply, and prosecutors won’t want to get into an argument they can’t win.  How to prove that what she did was done with criminal intent?  It won’t be easy.

By contrast, family courts have a good deal more leeway in enforcing their orders.  For example, a family court doesn’t need to jail a mother to convince her to start obeying its orders.  It can make her pay the dad’s attorney fees, it can give him long periods of make-up custody, it can switch custody to him.  All of those things will usually be preferable to jailing a child’s mother, an outcome few fathers want anyway.

So the answer is for state legislatures to pass laws making it clear to family judges that they are to take child access as seriously as they take child support.  That’ll mean taking prompt action to stop visitation interference as soon as it starts.  It’ll also mean making enforcement of visitation orders free to non-custodial parents.

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