Divorce – When Child Access is Denied

Child access, sometimes referred to as visitation, can prove to be very challenging for divorced or separated parents. Children are always best served when both parents act reasonably and civilly toward each other and realize that, whatever they think of one another, their children benefit most by having two loving and concerned adults in their lives even after divorce. Cooperation by both parents is critical in making sure that each has enough quality time with the children to maintain a healthy relationship despite the divorce.

But what about when a divorce is so bitter that it causes one parent to have so much resentment towards the other that the best interests of the children take second place to inflicting pain on the other parent. How can the so-called “access parent” have his or her access rights enforced? The answer is not straightforward.

When separation agreements or divorce orders, give one parent the right to “liberal”, “reasonable”, or “generous” access is nearly impossible to get a court to enforce it when the “custodial” parent or parent with “primary care” refuses to cooperate. When the access parent takes such a complaint to court the result is almost always a change to more specific access, one based on a fixed schedule. The reason is obvious. Words such as “reasonable” are just too vague to be easily enforced. Such terms are ideal when they allow to reasonable parents all the flexibility they need to act in the best interests of their children. But they are worse than useless when one or both parents set about to exploit the intentional vagueness. Changing the access terms in the divorce order to a fixed schedule allows a divorce judge to have a better idea of whether there actually has been a breach of the terms or not.

Even when scheduled access is denied a court is more likely to reissue a slightly revised divorce order and give a stern warning than it is to penalize the custodial parent in some meaningful way. It is only once the denial of access becomes chronic that a divorce judge will be likely to resort to sterner measures.

This is unfortunate of course, because it means that the parent who has been denied access has to incur the financial and emotional costs of repeated trips to court before a judge will actually “do something” about the other parent’s refusal to abide by the terms of access. Also, repeated court appearances take time, and meanwhile the children are being denied the opportunities the access is supposed to provide to build and maintain a strong relationship with the access parent.

The reason judges are so reluctant to act quickly and decisively in response to complaints about denial of access is because the responses available are usually far from attractive. Finding the custodial parent in contempt of the divorce order, can result in a fine or even imprisonment. A fine simply deprives the family, most importantly the children, of some usually much-needed money. Imprisonment obviously denies them their primary caregiver and is likely to exacerbate the already tense relationship between the parents.

Tweaking the amount of child support paid is an unattractive option, because, presumably, the amount previously set was determined to be in the best interests of the children. Allowing the aggrieved access parent to pay less or withhold payment simply denies the children necessary financial resources.

Another option is to order some form of makeup access but this amply begs the question of how the makeup access can be enforced. Appointing someone to be an access facilitator can help. However, unless the parents can agree on someone who will act free of charge, it is likely to be fairly expensive. Also, disputes between a parent and the access facilitator are likely to end up back before the judge.

A stiff, but usually effective, response is for the court to reverse the roles of the parents so that the children go into the primary care of the person who had been the access parent. Now it becomes the access parent’s responsibility to ensure that the children are provided with appropriate access with the other parent. This places the respective shoes on the other feet. Sometimes the mere threat of this is sufficient to bring about a change in the access deniers attitude. But the threat must be real.

The problem with this last approach is that, presumably, the roles of custodial and access parents were originally made because that was what was in the best interests of the children. The court must determine that the denial of access is so severe that it warrants. The role reversal, despite the other factors, which had originally led the court, or the parties themselves, to make the original assignment of roles.

Sometimes, when the denial of access is significant, when the change of roles is inappropriate, and when the adverse effects of the ongoing dispute are taking a toll on the children, the divorce court has to seriously consider reducing or even canceling access altogether. Of course this is totally unfair to the aggrieved access parent, and unjustly rewards the parent guilty of denying access, these considerations are secondary to the best interests of the children. Therefore, in some situations, it is an option, a divorce court will seriously consider.

The best course of action for a parent whose access is being denied by the other parent is to take the high road. This means making sure his or her own behavior is beyond reproach. It also means being reasonable, patient, and long-suffering and doing everything possible to minimize the adverse effects of the dispute on the children. However it does not mean to simply lie down and take it. But before you take an access dispute before a divorce court you need to think long and hard about what you are going to ask the divorce court to do to enforce it. It is up to you to convince the court that your remedy is in the best interests of the children.