Interference with Visitation

This article was reproduced with permission from The Commentator, a publication of the Family Law Section of The Florida Bar. The statements or expressions of opinion within it are those of the author(s), and should not be attributed to The Florida Bar or its Family Law Section.

Interference with Visitation

by Lisa Marie Macci, Boca Raton

As professionals in the area of domestic disputes, we see that it is all too common that the bitterness attendant to divorce often leads parents to disregard their obligation to support and facilitate a relationship between the children and the other parent. Additionally, far too much valuable court time is expended on complaints regarding visitation problems. It is estimated that parents of more than six million children have interfered in their court ordered visitation. (FN1)

The AFLP View

The Association of Family Law Professionals (AFLP) in recognizing interference with parental contact and access as a chronic and vexing problem formed a committee of volunteers to study this issue and has offered the following suggestions:

1. Identifying the Problem:

The AFLP has identified the following as dysfunctional beliefs evidenced by the custodial parent which fosters visitation problems:

* I am the one who is more loving and/or responsible.

* Therefore, I will look after my child’s welfare better than my ex.

* Consequently, my child suffer neglect, inadequate care, poor supervision, be less loved, be exposed to a poorer role model and lower standards with the other parent.

* Since my ex-mate did not treat me the way I wanted to be treated, he/she may do the same to my child.

* I am doing what is best for my children.

* I am only trying to protect my children.

* I am only doing what my children want.

* My motives are pure. My ex has bad motives.

* Any right thinking person would see it my way.

* My ex is good at fooling people, so if he/she gets their way it is because he/she fooled you.

2. What Can be Done to Deal with this Issue?

Currently, Florida Statutes provide the courts with the following guidance in this regard:

Subsection 61.13 Custody and support of children; visitation rights; power of court in making orders.

(4)(a) When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent’s visitation rights.

(b) When a custodial parent refuses to honor a noncustodial parent’s visitation rights, the noncustodial parent shall not fail to pay any ordered child support or alimony.

(c) When a custodial parents refuses to honor a noncustodial parent’s or grandparent’s visitation rights without proper cause, the court shall, after calculating the amount of visitation improperly denied, award the noncustodial parent or grandparent a sufficient amount of extra visitation to compensate the noncustodial or grandparent, which visitation shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the person deprived of visitation. In ordering any makeup visitation, the court shall schedule such visitation in a manner that is consistent with the best interests of the child or children and that is convenient for the noncustodial parent or grandparent. In addition, the court:

1. May order the custodial parent to pay reasonable court costs and attorney’s fees incurred by the noncustodial parent or grandparents to enforce their visitation rights or make up improperly denied visitation;

2. May order the custodial parent to attend the parenting course approved by the judicial circuit;

3. May order the custodial parent to do community service if the order will not interfere with the welfare of the child;

4. May order the custodial parent to have the financial burden of promoting frequent and continuing contact when the custodial parent and child reside further than 60 miles from the noncustodial parent;

5. May award custody, rotating custody, or primary residence to the noncustodial parent, upon the request of the noncustodial parent, if the award is in the best interests of the child; or

6. May impose any other reasonable sanction as a result of noncompliance.

(d) A person who violates this subsection may be punished by contempt of court or other remedies as the court deems appropriate.

Fl. Stat. Subsection 61.34(4) (a) (2001).

The AFLP offers the following suggestions and ideas conceived by the group:

* Assign homework to the parents. Have them keep a diary or write an essay to be brought back to the court which may include one or more of the following items: (1) documenting the actions taken to promote visitation, (2) giving examples in which the parent “gave in” to the other parent, (3) preparing a list of the other parent’s admirable traits or qualities or contributions, and (4) preparing a list describing the unique contributions the other parent makes to the well being of the chid(ren).

* Have professionals make up a list of specific dos and dont’s with regard to visitation to give to parents (e.g., make sure the children come home in clean clothes, don’t keep things the children brought with them, etc.)

* Consider starting a Visitation Promotion class to educate parents on how to promote visitation and what behaviors and actions create visitation problems.

* Consider having children of sufficient age and maturity meet with the judge in court or in chambers so that the judge can explain his or her ruling to the children and what he or she expects of the parents as well as the children.

* Consider administering consequences for noncompliance of a court order
which could include community service or indirect criminal contempt of
court.

* Consider awarding make-up visitation for contact that was missed due to interference during most desirable times or by doubling make up time.
Thus, missed visitation time could be made up by awarding it for desired holiday periods, as well as awarding double and triple time in the summer.

Turkat’s View

In an article written in 1997, Dr. Ira Daniel Turkat (FN2) takes a different view of the etiology and remedial action necessary to cure chronic visitation problems. Dr. Turkat viewed the existing remedies as ineffective and sometimes deleterious, recognizing that penalizing the interfering parent financially, or by means of imprisonment and change of custody could potentially hurt the children involved. Further, he found that there is no scientific evidence that mental health professionals can successfully treat a visitation interference problem (FN3) and found that there is a serious concern about the competence level of various mental health professions when it comes to custodial disputes. (FN4) Research indicates that interference with visitation actually became worse following participation in a remedial state court program in about one-half of the cases. (FN5)

1. Identifying the Problem:

Dr. Turkat cites to clinical descriptions of individuals who regularly engage in child visitation interference. One such example has been identified as “parental alienation syndrome” in which the affected parent teaches the child(ren) to become unjustly obsessed with negative qualities of the other parent. At the extreme existence of the disorder, the parent and child share antagonistic beliefs about and behavior toward the other parent and visitation is chronically interfered with as the child has been trained to engage in visitation denial independently. (FN6)

Dr. Turkat believes that a parent truly committed to interfering with visitation will most likely succeed. Further, he believes that therapy would not be effective as a person who will lie on the witness stand is just as likely to lie to a therapist. Another problem cited by Turkat is the significant interval between the violation and a scheduled hearing which virtually guarantees the absence of a timely penalty, a fact the sophisticated interfering parent relies upon.

Dr. Turkat summarizes the problem of child visitation interference to be a consequence of three key difficulties:

* The interfering parent’s determination to sabotage any opportunity for proper child visitation;

* The absence of highly specified visitation schedules, transfer sites, monitors, and penalties; and

* The absence of a timely penalty.

2. What Can be Done to Deal with this Issue?

In Turkat’s view, the criteria for a remedy lies in the nature of the court order. He provides the following guidance in this regard. The order should contain these key components as appropriately needed:

* Specific dated and times of visitation. The specificity should be to a degree that any outside observer would have no room to interpret the dates and times any differently that those outlined by the court.

* A precisely defined neutral location for visitation transfers. Ideally, the chosen site should be in a neutral setting where conflict is less likely to occur and where there is no strategic advantage for the interfering parent.

* Appointment of an individual to monitor and supervise all visitation transfers. The monitor should be someone who is agreeable to both parties or someone in whom the court has confidence.

* Precisely worded authorization to all law enforcement officers to execute the transfer of children as specified in the court order. In certain cases, the police may be directed by the court order to arrest the violating parent.

* Precise authorization to school personnel to provide whatever rightful access is due the noncustodial parent.

* Precise authorization to any individual involved in any activity with the child to not engage in any behavior that would interfere with the relationship between the child and the noncustodial parent, including visitation rights. The court order should state clearly that this directive applies to any individual involved with the child in any capacity, including, but not limited to, friends, relatives, neighbors, professionals and acquaintances.

* A clearly specified hierarchy of penalties for the custodial parent based on the nature of the offenses committed.

* A clear specification of penalties for any individual who violates the court order.

* A clause to reserve the right of the court to modify the contents of the court order at any time and the right to enforce it in any manner deemed necessary.

Conclusion

Many suggestions offered by both the AFLP and Dr. Turkat are currently provided for in Florida Statutes. How often the more creative options are utilized by our courts is unknown. Several other suggestions offered appear to be facially unconstitutional. One thing that is clear is that the interference of visitation is a continuing problem, not only in Florida, but throughout the United States. There has been little research done to determine which options are more viable and more effective to the multitude of forms and degrees of interference. One item which seems to have consensus of the experts is that interference with visitation is not being handle adequately or effectively by our court system as it currently exists and that reforms and further research are needed in this area.

Endnotes:
1. Children’s Rights Council, 1994. “Annual Convention Brochure,” Washington, D.C.
2. Turkat, I.D. 1987. “Management of Visitation Interference.” 36 The Judges’ Journal, Spring 1997, 17-47.
3. Turkat, I.D. 1994 . “Child Visitation Interference in Divorce.” Clinical Psychology Review 14:737-42.
4. Turkat, I.D. 1993. “Questioning the Mental Health Expert’s Custody Report”. American Journal of Family Law 7:175-79.
5. Pearson J. & J. Anhalt. 1994. “Enforcing Visitation Rights,” 34 The Judges’ Journal, No. 2, Spring 1991 at 2.
6. Gardner, R.A. 1987. The Parental Alienation Syndrome and the Differentation Between Fabricated and Genuine Child Sex Abuse. Creskill, N.J.: Creative Therapeutics. Gardner, R.A. 1989. Family Evaluation in Child Custody Mediation, Arbitration, and Litigation, Creskill, N.J.: Creative Therapeutics.

Lisa Marie Macci is a marital and family law attorney practicing in Boca Raton, FL with the firm of Lisa Marie Macci, P.A. She is a 1988 graduate of Pepperdine University School of Law and serves on the Florida Bar Family Law Rules Standing Committee and serves the Family Law Section on its Support Issues and Publications Committees.