Interference with Visitation

1. What is Interference with visitation?

After a bitter divorce, visitation disputes can linger for years if not decades. I have seen many people ruin their lives by engaging in mental warfare with their ex-spouse over visitation disputes. In many cases, ex-wives use visitation as a bargaining chip to force their ex-husband to pay his child support. Moreover, in many cases ex-wives try to frustrate visitation so that she can essentially shut out the ex-husband. In many cases, stepfathers take over the parental responsibilities after a divorce. Unfortunately, many ex-wives frustrate visitation with the biological father if they remarry, and if the stepfather is caring and a good financial provider for the children.

Interference with visitation can take many forms. It can be attempts to prevent visits. It can be "poisoning" the child with negative talk about the other parent. It also includes the prevention of communication between the parent and the non-custodial parent. Letters, phone calls and gifts can be kept from the child. It can also be attempts to make visitation difficult by scheduling appointment or activities during the expected time of the visit.

2. What can I do if I experience interference with my visitation rights?

The courts have many remedies to address interference. These can include a make-up visit(s) for those missed, increased visitation time, fines, and even possible jail time. Some courts will find the custodial parent in contempt of the court-ordered visitation schedule. In extreme cases, the courts may remove the children from the custodial parent and place them with the other.

In my experience the best strategy to avoid repeated interference with visitation is to require that all of the pick up and drop off of the children occur at the local police station. The parties will be forced to act more civil to each other if they have to conduct their "business" at the police station. Moreover, if one party fails to appear, then a police incident report can be prepared to document any violations of any court orders.

3. I never get to have visitation(s) with my children. Do I still have to pay child support?

The answer to this question is an unequivocal "Yes." Visitation and child support are two separate and distinct issues. The custodial parent has a duty to allow a non-custodial parent visitation with the children, and the non-custodial parent has the duty to pay child support. If there is interference with your visitation, then you must file a motion in the family court to enforce your visitation rights.

A non-custodial parent can file a motion to have the child support placed in an escrow account until any visitation disputes are resolved. In many cases, the best method to convince an embittered ex-wife to permit visitation is to exert financial pressure on her. It may be advisable to file a motion and request that the court order that the Probation Department hold all of the child support payments in escrow until any visitation dispute(s) are resolved. If the judge is open minded, then he may carefully consider this request.

4. Can interference with visitation amount to a substantial change of circumstances to warrant a change of custody?

Interference by one parent in the relationship of a child and the other parent is almost never in the child's best interests. Most courts and experts agree that except in unusual cases it is most important for a child to have a strong relationship with both parents. Thus, courts will typically conclude that an award of custody to the parent who is most likely to foster as relationship between the child and the other parent is in the child's best interests. For this reason, if a custodial parent has demonstrated in the past a pattern of interference with the relationship between the child and the non-custodial parent, unless other facts dictate a difference holding, a court will frequently conclude that a substantial chance in circumstances justifying a change of custody has occurred.

The most common form of interference with parental rights which is remedied by courts occurs when custodial parents consistently refuse to turn children over to the non-custodial parent for a court-ordered visitation. The fact that the courts frequently order changes of custody changes of custody in these circumstances is perfectly understandable, since a court-ordered visitation is often the non-custodial parent's only connections to his or her children. If this visitation is frustrated, the child's best interests are clearly injured because the child will be completely deprived of a relationship with the non-custodial parent.

Courts frequently conclude that where the custodial attempts to show the other parent in a negative light, a substantial change in circumstance has occurred which justifies a change of custody. Experts generally agree that when a custodial parent speaks negatively about the non-custodial parent in presence of the child, a custodial parent causes great damage to the emotional and mental health of the child.

5. What legal clauses should I insert into the divorce judgment to protect my visitation rights?

In order to prevent a child's relationship with the non-custodial parent from deteriorating, certain provisions should be standard in every divorce judgment. First, every divorce judgment should require each person with a right to custody or visitation to foster the relationship between the child and other persons who have a right to custody or visitation. Second, every divorce judgment should state that persons who have custodial or visitation rights should not speak ill of another person who has custodial or visitation rights. Third, there should be restrictions on a custodial parent's right to relocate without informing the court or the non-custodial parent.

These three provisions will not guarantee that no problems with custody or visitation will occur. If the above provisions are inserted into a divorce judgment, then a violation of a specific provision could lead to a contempt violation. While not a panacea, the above three provisions may give the non-custodial parent the extra edge which he or she may need in any post-judgment custody dispute. Furthermore, since the provisions encourage a strong relationship between both parent the child, such provisions are generally in the child's best interest.

6. My evil ex-wife will not permit me to have visitation with my children? The family courts are useless, and my wife simply ignores all of the judge's orders. Can I file criminal charges against my ex-wife from hell?

In the event that the family courts fail to adequately resolve visitation disputes, then a person might consider filing a criminal charge against their ex-spouse for criminal interference with visitation/custody. The remedy is powerful indeed, but the right circumstances must exist for it to be sought. The statute for violation of visitation/custody rights is N.J.S.A. 2C:13-4. A violation of the interference with custody statute is a third degree crime, unless the child is taken, detained, enticed or concealed outside the United States, in which it is a crime of the second degree.

In addition to a possible jail term, a person convicted of interference with custody/visitation of a minor child will be required to make restitution of all reasonable expenses and costs. This includes reasonable counsel fees incurred by the other parent in securing the child's return.

The county prosecutors are very reluctant to get involved in family law disputes. It will be very hard to convince a prosecutor to pursue an indictment for interference with visitation rights. I would advise a client to file a motion in the Family Court, and request that the judge refer the case to the county prosecutor for a review for a possible indictment. The county prosecutor may take a serious look at a criminal charge for criminal interference with visitation/custody rights if it is referred to their office by a judge. In all likelihood, the county prosecutor still will decline to pursue an indictment. However, the custodial spouse when faced with the enormous threats and pressure of being indicted, probably will cave in and permit visitation.

7. Can I sue my ex-wife for her constant interference with my visitation rights?

Yes. The deliberate interference with the legal right of a spouse to custody and visitation is a marital tort. Therefore, if you ex-spouse ruins your relationship with your children by interfering with your visitation, then you can sue her in the civil courts for a tort claim. It must be emphasized that marital tort claims for interference with visitation rights are very rarely filed. The right to file a tort for this type of cause of action does indeed exist. However, there are many types of laws and potential claims of action that exist in the books, but in the real world do not exist. If a marital tort for interference with custody/visitation rights is filed then in all likelihood, the civil court would transfer the case to the Family Court.

There are some powerful benefits to filing a marital tort though. The filing of a lawsuit will convey to your ex-wife that you mean business, and that you are not going away. The ex-wife may try to resolve the visitation dispute to avoid the costs of hiring a lawyer to respond to the lawsuit. Many times that sole purpose of filing a lawsuit is to force the parties to reach a compromise. Therefore, in many cases the filing of a marital tort can force a settlement.

8. What are some practical tips to enforce my visitation rights?

I always advise my client to keep a calendar. Have witnesses when trying to pick up a child. Call police as a civil standby, and obtain incident reports from them later. Always make sure that all parties are well informed as to the time and place of the pick up or exchange. If you can do this in writing, so much the better, it will prove a record if needed later. Keep and organize all written correspondence with the other parent. Keep all this together with your journal. If after doing all of the above, the custodial parent still denies your visitation, then file a contempt motion against her.

Information provided by:
Theodore Sliwinski, Esq. located at
http://www.divorcecenterofnj.com