One particularly challenging aspect of life after a custody battle involves a failure to comply with a schedule of physical custody. These situations typically fall into two categories – (1) where the parent refuses to send a child as scheduled, and (2) where a child refuses to go with a parent as scheduled. In this post, we will address how to handle a parent refusal of physical custody.
Whether parents share joint physical custody or one parent has sole custody and the other parent visitation rights, both parents have a right to custody as set forth in the Parenting Plan ordered by the court. These Parenting Plans are not suggestions; rather, they are legal obligations. Denying a parent custody when that parent has the legal right to exercise custody can constitute custodial interference, which is a crime. Also, denying custody as set forth in the Parenting Plan is prima facie evidence of contempt.
Every Parenting Plan sets out not only a schedule where each parent has physical custody of the child, but also the method of exchanging custody. For parents that generally get along, custody exchanges occur at school or at one or the other parent’s residence. For parents that do not do well in each other’s company, exchanges could be arranged at the Family Court Center or a local police department.
Sometimes a custody exchange may not occur because of a child having an illness or a snowstorm or some similar last minute emergency. In these situations, parents usually understand and work out a makeup time in the schedule. We are addressing in this post refusals that are not happenstance but intentional.
When a parent refuses custody at a police station or the Family Court Center by simply not showing up as scheduled, and the parent responsible for bringing the child will not answer the phone, an email or a text, the parent awaiting custody has a choice: ask the police to locate the parent and arrange the custody transfer or accept that the exchange will not occur. A parent should exercise good judgment in these situations, because escalating an exchange to involve the police generally makes the child feel uncomfortable or frightened or confused. If a parent feels that the police can handle the situation in a way the child will not resent or fear, utilizing the police in that situation likely would be appropriate. If not, the parent denied custody would still want to complete a police report, particularly when exchanges occur at either the police station or an exchange center so that a record will be made for future use.
While acceptance of a single refusal may be the best way to handle the refusal in the moment, it is not the right approach in the long run, as it will only encourage the refusing parent to continue to deny custody. Our new custody laws frown upon a parent denying custody, and after one or two documented refusals, the parent has two options for relief: file a Family Access Motion or file a Motion for Contempt.
A Family Access Motion has certain advantages over a contempt motion. First, a parent can file it without a lawyer. Second, the courts have a dedicated docket for family access motions, so you will get heard faster. Third, a court has more options for relief when dealing with custody refusal, including ordering not only compensatory makeup time but also counseling for the parent, child or family as a whole.
When would you want to use a contempt motion? Generally, when you have a situation where you feel that the parent will ignore the court repeatedly or that a change in custody might be necessary, you want to pursue a contempt motion. Repeat refusals themselves can be the basis for modifying custody.
As you can see, parents denied custody have several remedies. The keys to remember: document every custody refusal; do not escalate in a way that would not be in the child’s best interest; and do not wait too long before you seek court intervention.
If you have questions about custody or visitation refusal, contact us – we can help.