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My sons father wants visitation after 4 years out of the picture and I don't think its a good idea, can I prevent it?

Amherst, MA |

My sons father has been out of the picture for 4 years because of his serious drug choices. He now wants visitation because he has been paying a very small amount of child support, but I don't think it is the best idea for my sons emotional well being and things are best left the way they are. I don't want my son to have to go through the back and forth of his instability. Can I stop this in any way? I have full custody and have supported almost everything for my son since the beginning. I cannot afford to re-hire the lawyer I had before. What would you recommend, or what are my chances of what I feel is best being granted in court?

Attorney Answers 3

Posted

If your earlier judgment set out custody and visitation rights ( and I assume that it did) then you can file a Modification action at Court and show that there has been a "substantial change in circumstances" that should cause there to be new restrictions on his visitation rights. The Court is unlikely to prohibit all visitation. However, you might request that there be what is called therapeutic supervised visitation, which is where the father and child engage in specialized joint counseling so that the child is emotionally ready to re-engage after a gradual and protective process. Alternatively, or in conjunction with this counseling, there can be supervised visitation outside of the counseling, so that it can be terminated any time the child shows any adverse effects of the visitation. Supervised visitation can be for a short prescribed (by the therapist) period or for an indefinite period until such time as he (or, possibly, you) think it should be changed by further court proceedings (modified). I find that some judges are reluctant to order therapeutic supervised visitation because of skepticism about its worth and the cost to the non-custodial parent. You may need to ask for a Guardian ad Litem investigation that would result in a recommendation to the Court, but it can be expensive. In MIddlesex County you can ask for a Court Clinic investigation, but it is not as extensive as a Guardian ad Litem invesitgation, but it is free.

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Asker

Posted

Thanks you both very much for your comments and insightful legal advise. I find this all to be very helpful. I wish to fill in some more details on my end that might be helpful. I have had no contact with my old lawyer of my sons father for 4 years except through his small amount of child support. As for the visitation order you mentioned, his was suspended the last time were were in court following an investigation showing that he took a substance to pass a drug test on the final day we were in court, so no visitation order has been in place for this whole time, 4 years. He did have unsupervised visitation and then supervised visitation before that. He kept getting into trouble so the court finally caught on and suspended things. Now I am afraid that the court will be convinced that he has cleaned up over a sufficient amount of time, but I do not think it will ever be a good idea for my son to be around him. I am not convinced that it will not be putting my son at risk, even if he passes drug tests now. I think the emotional harm can be just as dangerous and my son and don't think it is in his best interest to see his father at this point. Based on these visitation details, do you think I have a case, or chance of continuing to suspend visitation, or could I possible make a plea to relinquish child support forever if he stops trying to gain visitation? Thank you so much.

Steven Edward Zlochiver

Steven Edward Zlochiver

Posted

If the suspension of visits happened by way of a final judgment he will have to file a Modification Complaint to which you can Answer and Counterclaim. In such a Counterclaim you can make your own allegation of a substantial change in circumstance - such as the passing of time and consequential emotional stability for your son which would be obliterated if unsupervised visits were to resume. You should also ask for resumption of drug testing to be overseen by the Probation Office (of the Probate Court). If the suspension happened by way of a temporary order and he files for a review (perhaps by way of a Motion for Further Temporary Order) you make essentially the same argument as you would have made in a Counterclaim - things have stabilized for your son and it is in his best interest for there to be no resumption of visits (or for there to be therapeutic supervised visitation or whatever you think it is best to ask for). The Court will not want you to relinquish child support because that increases the risk (in the Court's view) that the Commonwealth could end up providing public assistance some day. Therefore, as a matter of public policy it will insist that he continue to pay. Good luck - Steve Zlochiver

Posted

I agree with my colleague, but add some additional comments. Without knowing you son's age, it is hard to say definitively what type of limited visitation might be appropriate. Technically, however, if there existing orders for visitation, those are what is technically the father is entitled to. It would be in your and your son's best interests to file a complaint for modification, together with a motion for temporary orders to suspend all visitation between father and son, grounds of father's past limited or non-existant visitation with your son and drug abuse by father, and alternatively, for only supervised visitation at a family service center, for a period of time, so father's interaction with the child is in a supervised setting where the child's safety is assured.

I agree with my colleague's assessment that the courts can be reluctant to order therapeutic visitation, but it depends on the unique circumstances of each case, taking into account many factors beyond what you have set forth. In addition to the suggestions regarding possible appointment of a guardian ad litem, you can also consider requesting that the Court appoint attorney for your son, sometimes offered at no expense to the parents.

There is also a general consensus that, where possible, at no risk of harm to the child, the child have a relatioship with both parents -- but again, based on the circumstances of each case.

Best wishes to you.

No attorney-client relatonship is created in responding to this question, and advice provided is based solely on very limited facts presented, and therefore may not be correct. You are advised that it is always best to contact a competent and experienced with the practice of law in the county in which you reside, particularly as it relates to family law, child support, custody and visitation (a/k/a "parenting time") issues, including 209A abuse-prevention restraining orders (a/k/a "ROs" in legal-speak), regarding un-emancipated children, under the age of 22.

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Posted

If he wants visitation, let him file an action in court seeking such visitation. Then if any visitation is ordered, there will be guidelines set by the court.



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