On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Tuesday, June 11, 2013
It may seem almost as awful as the inability to see your child – having to see your child under the watchful eye of a third person, particularly one who may not have your interests at heart. Though uncommon as a general rule, supervised visitation happens more frequently than most realize. When can a court order supervised visitation? Is it always optional? Once ordered, can it ever go away? Who selects the supervisor?
Section 452.375.3 of the Missouri Statutes, governing child custody, makes explicit that no one who has been found guilty of one of a variety of sexual offenses (and would be a registered sex offender) when the victim was a child may have physical custody or unsupervised visitation of a minor child. Similarly, Section 452.400.2 denies an initial award of visitation to one who has been found guilty of the same set of sexual offenses (and would be a registered sex offender) when the victim was a child. Missouri law will allow a registered sex offender to have limited supervised visitation if the court finds it in the best interests of the child and that such visitation would not threaten the physical or emotional welfare of the child.
It is important to note that the statute extends protection for children to any person living in the home of the children. So, if a parent begins a relationship with a person who is a registered sex offender, that parent would do so at the risk of losing custody or visitation with his or her child.
Beyond sex offenses, our statutes safeguard victims of domestic abuse and other scenarios that would place a child in a household that poses a real and continuing threat of physical or emotional harm. In these situations, a court has broad discretion to order supervised visitation. One should know that drug or alcohol abuse or serious mental illness could create an atmosphere of physical or emotional harm that would warrant supervised visitation.
So, what constitutes supervised visitation? Our statutes define supervised visitation as “visitation which takes place in the presence of a responsible adult appointed by the court for the protection of the child.” The court will look at the circumstances and decide whether supervised visitation could take place safely in the home of the parent or must be in either a public place or facilitated through the Division of Social Services (so-called “courthouse visitation”). If the latter, the court will usually appoint a social worker employed by DSS. The court may opt to have a private therapist conduct supervision to also gauge whether broader forms of visitation would be recommended as safe and in the best interests of the child. Most often, the court will appoint a family member the court believes can serve in the role that will make it easier for the child without diminishing the risk of harm. Grandparents who may be too lax would not be considered; the other parent who might create conflict would be excluded as well.
Sex offenders would always be under supervised visitation under the best of circumstances, and may never have overnights. All other individuals receiving supervised visitation have the opportunity to petition the court to modify the terms of supervision, either to expand the duration and even to include overnights, and ultimately to remove supervision entirely. To make such a case, the parent under supervision will need clearance from DSS and probably health care providers supervising treatment for underlying conditions of concern. Should supervision be lifted, the parent must remember that the court could always reinstate those terms should a risk of physical or emotional harm return for the child.
Allegations of abuse can create an overuse of supervised visitation, at least in the short term, which means some parents in custody cases who take advantage of the system can cause a person who poses no threat of harm to the child to still suffer supervised visitation. After third party investigation, these false claims usually receive clearance and supervision is lifted, but for the supervised parent the stigma remains and could be a barrier in the relationship with the child. To avoid these situations, a parent needs a strong advocate at the outset to protect his or her rights of custody.
Our experience indicates that only rare cases require extensive supervision of visitation, and with proper intervention from social workers and health care providers those periods can have a happy conclusion. The law certainly intended supervision only for situations deemed true threats of physical or emotional harm to a child.
If you have questions about supervised visitation, contact us – we can help.