Denial of custodial time tends to be far more common than one would imagine. After all, the court went to the trouble to set out in specific detail the precise days that each parent would have physical custody of the children, so how could any problems really arise?
Parents have a wide range of motives for denying the other parent custodial time, ranging from the rather innocent (not wanting to miss an extracurricular event or play date) to the not-so-innocent (making excuses about illness simply to deny custodial time).
The courts frown upon any frustration of a parent’s right to physical custody per the Parenting Plan. The Missouri legislature made clear that it prefers frequent and meaningful contact with both parents, and that the entire purpose of requiring a Parenting Plan is to ensure that neither parent is denied that frequent and meaningful contact.
Because courts generally do not move quickly on non-emergency issues, trying to litigate a violation of the Parenting Plan through the traditional motion for contempt can be a less-than-optimal means of curing noncompliance with the custody schedule. Recognizing this reality, the legislature created a faster option – the Family Access Motion.
Family Court Judgments and Parenting Plans now include the following provision advising parents of their options in the event of non-compliance:
In the event of non-compliance with this order, the aggrieved party may file a verified motion for contempt. If custody, visitation, or third-party custody is denied or interfered with by a parent or third party without good cause, the aggrieved person may file a family access motion with the court stating the specific facts that constitute a violation of the custody provisions of the judgment of dissolution, legal separation, or judgment of paternity. The circuit clerk will provide the aggrieved party with an explanation of the procedures for filing a family access motion and a simple form for use in filing the family access motion. A family access motion does not require the assistance of legal counsel to prepare and file.
A family access motion may be filed with or without an attorney at the courthouse, and the local courts all have preprinted forms to complete indicating the nature of the missed custody time. A completed family access motion must be served within five days by the sheriff on the other parent. Within two weeks of the filing of the family access motion, the court must advise the parties of alternative dispute resolution – basically mediation – as a means to resolve the custody schedule violations. If mediation does not work, the court must promptly set the case on its family access motion docket, which hears motions very quickly, similar to an adult abuse docket – and the whole matter must be resolved within 60 days of the filing of the motion. The party wrongfully denied custodial time will receive compensatory time, and the court could also order a fine up to $500.00 and even the posting of a bond to ensure future compliance.
Though you can handle a family access motion yourself, you might want to have an attorney assist you in the case, if for no other reason than to advise you whether a different approach, perhaps a motion for contempt, would be a wiser option.
Should you need the advice of a family law attorney or have questions or concerns about your situation, know that we are here to help and discuss those issues with you.