Enforcing and Modifying Custody and Visitation- Module 4 of 5

When divorcing spouses don’t agree on how to enforce a custody or visitation order, there can be animosity and confusion. Some state court systems, California’s for example, attempt to prevent this issue from arising by providing checklists of recommendations for administration and enforcement of custody arrangements.[1] The California courts provide practical advice to parents, such as “keeping a copy of a current court order in a safe place” and providing other parties who have custody or visitation with copies of the order.

In this module, we will examine issues of enforcement and modification. We’ll start by discussing how a court will enforce a custody order or a visitation agreement. Next, we’ll move to explaining how a court can modify either one.

Enforcing Custody and Visitation

Enforcement difficulties may result from either parent’s failure to follow a custody or visitation agreement’s terms. Parents can violate either in several ways, including:[2]

· being chronically early or late to pick up or drop off a child;

· leaving a child in the care of others without the custodial parent’s permission;

· abusing narcotics or alcohol in the child’s presence; or

· refusing visitation or interfering with the other parent’s visitation time

An enforcement action may be brought either in the state with continuing jurisdiction or where the child resides.

There are several mechanisms to enforce custody or visitation orders. We’ll start with a civil contempt proceeding, which may be used to ensure compliance with a court order.[3] Contempt is a willful violation of a court order or decree.[4] To initiate a civil contempt hearing, the complaining parent can petition a state court and notify the parent charged with contempt so that she has a reasonable amount of time to defend or explain her actions.

The parent who filed the contempt petition must prove that the party who is charged willfully and deliberately violated the court order. In one Iowa case, a father who couldn’t exercise weekend visitation rights to his teenage children because they told him that they didn’t want to visit him sought to have his ex-wife held in contempt.[5] The court refused, holding that the husband failed to show beyond a reasonable doubt that the wife willfully disobeyed a court order. While he did present evidence that she wasn’t doing enough to push the children to see their father, there was insufficient evidence that the wife “deliberately” and “willfully” prevented the children from participating in visitation.

After finding that a parent violated a custody or visitation order, a court may order that the violator serve jail time, it may order compensation for costs resulting from the violation or it may place the parent on probation on the condition that future violations will not occur.[6]

A second way to enforce a custody or visitation order is to seek a writ of habeas corpus. This is typically used when one parent is wrongfully detaining a child. The petitioner must allege that the other parent has detained the child in contravention of an existing custody order. A court can order that the child be produced by the recalcitrant parent.[7]

Habeas corpus isn’t always an effective remedy, though. First, it’s ineffective when the period of wrongful detainment is very short, as the issue may become moot before the writ can be processed. Second, a writ of habeas corpus will not deter future interference with custody or visitation rights. Thus, a petition for a writ can be combined with a contempt action or with other requests aimed at preventing future violations of the custody or visitation order.

Enforcement Through Civil and Criminal Actions

A third method to enforce custody or visitation may be to file a civil tort action against the other parent. A lawsuit, if successful, can have a deterrent effect, as monetary damages may be assessed. Civil causes of action that may be implicated by visitation withholding may include intentional infliction of emotional distress, false imprisonment, unlawful enticement, civil conspiracy or defamation (when the visitation is prevented by convincing the children to refuse to visit the other parent).

In Drewes v. Ilnicki, the plaintiff (who had divorced in Ohio), sued his ex-wife for intentional infliction of emotional distress, alleging that she had moved the children to Florida, willfully concealed the children's whereabouts and “alienate[d] his child’s affection,” thus preventing him from exercising visitation rights.[8] The federal court acknowledged jurisdiction of this type of civil action.

Damages may include the costs and expenses of the plaintiff in locating and recovering possession of the child.[9] A court may also order compensatory visitation if visitation was wrongfully denied.[10]

Though a non-custodial parent can also seek tort damages for a custodial parent’s interference with visitation rights, some states refuse to recognize the tort due to public policy concerns. In Segal v. Lynch, a mother moved and blocked the father’s attempts to contact his children. The father filed a tort action for intentional infliction of emotional distress, but the court dismissed it. It reasoned that it is not in the best interest of the child to allow “a parent to utilize a child’s loss of affection for him or her as grounds for civil liability against the other parent.”[11]

Finally, widespread interference with custody rights has prompted many states to enact criminal statutes to enforce custody and visitation decrees. These laws deter and punish parental child abduction and custody interference.[12] In Virginia, for instance, a state statute provides that any person who “knowingly, wrongfully and intentionally withholds a child from either of a child's parents or other legal guardian in a clear and significant violation of a court order respecting the custody or visitation of such child, provided such child is withheld outside of the Commonwealth, is guilty of a Class 6 felony.”[13]

Modifying Custody

A custody order doesn’t have to remain static. Even though it’s considered a “final judgment”, it isn’t truly “final” until the child reaches the age of majority.[14] A court may always reevaluate a decision based on a “substantial” change in circumstances that impacts the child’s best interest.[15] The primary goal for courts in considering custody modification is to assure stability and continuity in the child’s life because changing custody can be a jolting and traumatic experience for a child.[16]

A court places a heavy burden on the parent challenging the custody order to provide a factual basis of why a change is necessary.[17] It’s a two-step process. First, the parent seeking modification must show a material change in circumstances. Next, she must prove that changing the child custody arrangement is in the child’s best interests.[18]

Other factors may also be considered in guiding a court to determine what is in the child’s best interest,[19] including the rights of the custodial parent to control the child’s activities and the right of the noncustodial parent to a continuous, meaningful relationship with the child.[20] In McMillen v. McMillen,[21] a father successfully sought modification of a custody order because his twelve-year-old son wanted to live with him so that he could hunt, fish and hike. The court reasoned that as the child became older, there would be less time for a meaningful relationship between him and his father, so it could modify the custody order granting custody to the father.

The parent seeking modification must file a motion to modify the original order. This motion should specify the change in circumstances and the modifications sought. An affidavit from the movant typically accompanies the motion that sets forth facts, circumstances and reasoning supporting the allegation that the modification is in the child’s best interest. He can also submit supporting affidavits from teachers, other family members and doctors who may have firsthand knowledge of the shortcomings of the original custody arrangement. Next, due process requires that notice be given to the other party.[22] During the modification hearing, both parents can present evidence as to why custody should, or should not, be modified and both can cross-examine witnesses.

In resolving the first step (demonstrating that there has been a material change in circumstances), the change must be shown to have detrimentally affected the child. In a 2007 Alabama case, a custodial mother married a convicted sex offender who had been convicted of first-degree sexual abuse and first-degree sodomy with a nine-year-old female. The father was successful in getting a court to modify a custody order because his ex-wife’s remarriage to this person was a material change of circumstances affecting the physical and emotional health, safety and well-being of the child.[23]

When analyzing the second step (that the change is in the best interest of the child), the court must look to a variety of factors, including the child’s safety, the parenting ability of the party seeking modification, the child’s age and gender and whether there is a pattern of domestic violence in the child’s home.

Modifying Visitation

It is generally easier to get visitation modified than to get custody modified. Either parent can seek to modify the visitation order, or a court may order a change to visitation on its own initiative. The parents can agree to a modification by preparing a written, modified plan setting forth the agreed terms to the court. The court will usually approve the modified visitation order if both parents agree to the modification and will only question or reject it when the court has reason to believe that the modification is against the child’s best interest.

Alternatively, one parent may petition the court to make a change to a visitation plan when there is a change in circumstances and the proposed change is in the child’s best interest.[24] Even though they are different concepts, visitation modification is often included in the term “custody,” making the modification requirements similar. The court may modify a visitation order whenever modification would serve the best interest of the child, but a court will generally not restrict a parent’s visitation rights unless it finds that the visitation would seriously endanger the child’s physical, mental, moral or emotional health.[25]

For example, a custodial parent may seek to modify a visitation order to curtail visitation based upon actual or threatened danger to the child. In one New York case, the court agreed to terminate grandparents’ visitation rights because disagreements and animus between the parents and grandparents had increased since the grandparents had gained visitation rights and had resulted in the mother developing post-traumatic stress disorder. The constant stress experienced by the mother preceding, during and after the grandparents’ visitation carried over to the grandchild and would likely have a negative impact on her.[26]

A second example of changed circumstances prompting a change in visitation is when something takes place that impacts the non-custodial parent’s ability to have meaningful and continuing contact with her child. In Shelton v. Shelton, the non-custodial parent sought increased visitation with his child by offering to provide cost-free childcare services for her when his ex-wife, the custodial parent, was unavailable.[27] The lower court denied his petition to modify the child visitation agreement on this ground, but the appeals court reversed, reasoning that there were changed circumstances and that it was in the best interests of his child if the visitation order is amended so that he could take care of her more often, thus ensuring meaningful contact with the child.

In our final module on child custody and visitation, we’ll explore international child custody cases and federal laws that address child abduction.