Visitation

Conditions or Restrictions on Visitation Rights 

 

                                                                                             

Visitation is Not Unconditional "Right"

A parent’s right to visitation is not unconditional.  It is a privilege. It can be conditioned, restricted, suspended or even lost.               

                                       "(A) parent whose child is placed in the custody of another

                                        person has a right of access to the child at reasonable times. 

                                        The right of visitation is an important, natural and legal right,

                                        although it is not an absolute right, but one which must

                                        yield to the good of the child." 

Restrictions on Visitation Must Have Reasonable Relationship To Harm

Restrictions or limitations on visitation must be based upon  proof of the possible harm to the child which might occur if the condition or restriction were not to be imposed. Speculation that harm “might” occur is not sufficient. It is reasonable to infer that there is risk of harm to a child having visitation with a parent who has a history of addiction, if the parent is using drugs or consuming alcohol during visitation. If the risk is proven, a requirement that alcohol or drugs not be consumed during visitation is warranted. Other risks are less obvious, and any conditions which are requested are subjected to the same scrutiny. An order which prohibited “any visitation with the children in the presence of a homosexual partner or anyone having homosexual tendencies or persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship”, was too broad. It did not bear a reasonable relationship to the harm it purported to protect the child against.

Proof of Potential Harm Sufficient

A court is not required to wait until a child is actually harmed before it can restrict visitation. If there is evidence of potential harm which is supported by something more than inference, bias or presumptions, visitation with a parent can legitimately be restricted or denied.

Total Denial of Visitation is Rare

Courts will not deny visitation except in extraordinary circumstances.  Restrictions have been imposed in situations involving sexual, physical, and/or emotional abuse by a parent. In one case, a court completely denied a father visitation with his 16-year-old son and limited his visitation with an 11-year-old daughter on the basis proof of severe and long standing emotional and physical abuse The court stated: “Given the extreme and unusual factual circumstances as to violence, and given Daniel’s closeness to the age of majority, the denial of visitation was not an abuse of discretion.

Denial of Visitation Not Permitted For Non Payment Of Support

Every judge lawyer has been faced with an angry parent who refuses to pay child support or alimony when the other parent refuses to honor visitation right, or sets up obstacle after obstacle to prevent meaningful visitation.  Conversely, another angry parent may withhold the children in response to the other parent’s refusal to pay child support.  In some states, visitation rights and support payments are mutually dependent. Not in Maryland.  Absent specific language either in the agreement or in the divorce decree making the covenants to pay support and to allow visitation expressly dependent on each, the denial of child visitation is not a valid defense to a petition to enforce payment of support, and visa versa.

Adultery

Adultery does not, standing alone, justify a denial of visitation.  If the adultery is occurring during the period of separation and the divorce, the premature introduction of a “significant other” into the life of the child may be ill advised and potentially harmful to the child. If there is testimony to that effect, a restriction on having the “significant other” involved in the visitation may be warranted. Viewed purely as a moral issue, however, and absent a showing of harm to the child, such a restriction may not be proper.

Specific Types of Restrictions

Child Abuse

“Where court has reasonable grounds to believe that a child has been abused by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party. Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.” Under this Statute, "abuse" must be established by "clear and convincing evidence". Even a finding of child abuse, however, does not preclude all visitation as a matter of law. In one case, despite evidence of physical abuse, a court refused to deny visitation and instead imposed conditions, namely:

          (1)  Visitation at the County Department of Social Services;

          (2)  Presence of third party;

          (3)  Monthly progress reports to court;

          (4)  Father to continue therapy;

          (5)  Father's therapist to report monthly to court;

          (6)  Periodic reviews by court.

Violating a Court Order

If there is an existing Court Order which allows unrestricted visitation, and a parent then suspects abuse, that parent runs a risk of being in Contempt of Court if they, on their own, deny visitation to protect a child. What to do? The following sounds eminently logical.

"Where the evidence is such that a parent is justified

in believing that the other parent is sexually abusing

the child, it is inconceivable that that parent will surrender

the child to the abusing parent without stringent safeguards."

Despite the apparent logic of the foregoing statement, and in light of the jaundiced attitude of many judges toward accusations of child abuse in disputed custody cases, caution is in order. Consult with your lawyer, take the child in question to a mental health professional for independent advice or report the matter to the Department of Social Services. They will investigate the matter and make a determination of whether the alleged abuse took place, or at least whether it can be proved. If you elect to deny visitation in the face of an existing order, my advice would be for you to immediately file for a modification of that order, enlist the aid of the Court and request an emergency suspension of visitation until the matter can be investigated.

Counseling as a Condition to Visitation or Custody

A requirement that custody and/or visitation depend upon continued participation in family counseling is permissible if in the best interests of the children. An Order requiring such psychological counseling for the child, mother and father, such as one that a mental health professional might recommend, was a permissible exercise of discretion, where the mental health professional had met with the child four times and the parties both individually and jointly.

Alcohol and Drug Abuse

The use of alcohol and other concoctions can impair judgment and render a parent unable to provide the consistent care, supervision, and guidance children need. Recovery from addiction can be a long term process. Children need a safe and stable home in which they can focus their attention and time upon growing up.  They also need to know both parents “for better or worse”. Balancing these factors is a challenge for judges making critical custody decisions. The potential volatility and confusion caused by even a recovering addict’s relapse disrupts the consistency of the care, supervision, and guidance children need.   If there is evidence of current use, a Court may

1  Order alcohol and/or drug testing;

2  Require that visitation be supervised;

3  Deny contact until there is evidence of successful treatment, a reasonable period of abstinence or both;

4  Ignore it.

If custody or visitation is an issue, and there is no evidence of currentuse, a Court will look at the history of use to decide if there are causes to be concerned. If the children were speaking to us, they would talk not only about their  need to have the addicted parent in recovery, but also of their need to have the anxiety, anger and fear the non-addicted parent reduced. The children want their whole world to be repaired, and that takes more than the addict's entry into recovery. It takes time to heal the wounds. In fact, those wounds never heal. But there needs to be enough time to let some scar tissue develop. Children know that the family is an interconnected system, and that its entirety has to be taken into account for any "solution" to do the best it can do.

Religion

If there is evidence that a parent's religious views pose a threat to a child's physical or emotional welfare, restrictions upon access/visitation may be justified. This implies something more than general testimony by parent that child is "confused" or "upset" by conflicting religious practices.

"A factual finding of a casual relationship between

the religious practices and the actual or probable

harm to a child is required--mere conclusions will

not suffice.”

For example, evidence that the pursuit of religion was a subterfuge for one parent's deeper motivation to demean the other parent was an adequate basis to restrict visitation.  The child's father insisted that the mother had not been 'saved' and was therefore destined for eternal damnation. The father espoused beliefs in “rock and roll' music, which led him to break a number of phonograph records in his daughter's presence to impress her with the fact that they were "bad"...,imposed his views on modesty to the child through the criticism of a bathing suit furnished by the mother, used his daughter in distributing religious tracts door-to-door to proselyte and inculcate religious dogma. This was deemed sufficient evidence that the child was suffering harm from the conflict between the parents, including conflicts growing out of religious differences. Needless to say, careful attention is needed to resolve the delicate question of the best interest of a child where choice of a religion and how it is practiced is raised as an issue.

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