Uniform Child Custody Jurisdiction Act (UCCJA):
Parental Kidnapping Prevention Act (PKPA):
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):
Once primary custody is decided, the interest of the non-custodial parent must be give consideration. The court will generally order reasonable visitation rights unless this would seriously harm the child. Visitation is not absolute. If visitation is not in the best interest of the child, the court will deny the non-custodial parent’s request. The courts take into account the following factors when making this decision:
- Child refuses to visit: as long as this refusal reflects the child’s true wishes and there has been no negative influence by the other parent, the court may decide not to order visitation.
- Reason for child's wish: if a child’s refusal is primarily the product of the custodial parent's fanning the child’s resentment against the other parent, the court would likely order visitation, even over the child’s supposed objections.
EXAMPLE: Patty is very bitter over her divorce from Everett. They had been married for 10 years and had two children. He left her for his much younger assistant. Patty was given primary custody over the children and she deliberately tried to turn the kids against their father. As a result, they were never very excited about visiting their father and his new wife. Here, the court would still order visitation, despite the children’s objections. See, e.g., Smith v. Smith, 434 N.E.2d 749 (Ct. App. Ohio 1980). Everett had a right to see his children, despite Patty’s negative feelings about him.
Naturally, the older the child is, the more weight the court will give the child’s own wishes in deciding whether to order visitation over the apparent objections of the child.
Where the custodial parent has repeatedly thwarted the non-custodial parent’s court-ordered visitation rights, a number of remedies are possible. On occasion, courts have issued a sentence of civil contempt against the custodial parent, until the visitation order is complied with. See, e.g., Smith v. Smith, 434 N.E.2d 749 (Ct. App. Ohio 1980). In Smith, the deviant parent was ordered to go to prison for five days. The sentence would have been suspended if she had complied with the visitation order.
In extreme cases, courts have sometimes dealt with a custodial parent who thwarts the other parent’s visitation rights by changing custody to the latter. See, e.g., Egle v. Egle, 715 F.2d 999 (5th Cir. 1983). In Egle, the wife repeatedly interfered with the husband’s visitation rights, moved the children without notice, turned the children against him and started a separate action against him in her new state of residence merely to harass him. The court shifted custody to the father because it felt that he would be more willing to honor the other parent’s visitation rights.
If one parent’s refusal to allow visitation stems from possible sexual abuse of the child, there is a potential uphill battle in trying to prove the other parent’s inappropriate actions against the child.
Maintaining regular visitation becomes more difficult when the custodial parent wants to move to another state. Courts deal with this issue in one of two ways. First, courts occasionally in effect prohibit the move by telling the custodial parent that she can move, but without the child. A court is more likely to take this approach if the judge feels that the custodial parent’s motives for moving are suspect. For instance, the court looks at the custodial parent’s sincerity in the desire to move, rather than for some frivolous reason before approving the relocation. See, e.g., Cooper v. Cooper, 491 A.2d 606 (N.J. 1984).
EXAMPLE: Sybil and Dean are divorced. Sybil was awarded custody of their three-year-old son. Dean was awarded liberal visitation rights. Recently, Sybil received a job offer to transfer to her company’s Dallas office. Currently, they live in San Francisco. Dean objects to the move because he feels he will lose the close bond he has with his son. In determining whether Sybil should be allowed to move with her son, the court would evaluate Sybil’s intentions in wanting to relocate to Dallas.
Conversely, when the judge believes that the proposed move is being made in good faith, e.g., for better job opportunities, for the needs of the custodial parent’s new spouse or for another substantial reason, the court is not very likely to block the move.
In some instances, even grandparents or other non-parents are entitled to some type of visitation rights. Grandparents are high on the list of candidates for visitation rights in many states. A few states have even given visitation rights to any person, regardless of relationship, if the court finds that this is in the child’s best interest. See Cal. Fam. Code § 3100 (2004). Primarily, courts are persuaded to award visitation in these circumstances if the party has formed a strong emotional bond with the child.
Most of these statutes apply only where the child’s parents have been or are in the process of being divorced or separated. Additionally, if one of the parents dies, the court will order this type of expanded visitation rights, especially if the deceased parent’s family is making the request. Court intervention may be the only way to protect the rights of someone who has developed a close tie to the child.