Visitation with a non-custodial parent is presumed to be in the best interests of a child. The denial of visitation is justified only for a compelling reason. This may include a variety of situations where visitation has been detrimental to the child or could be detrimental or dangerous to the child. Typically these are cases where there has been violence or sexual abuse against the child or a sibling, domestic violence against the other parent or a step-parent in the presence of the child, or the non-custodial parent has untreated drug or alcohol abuse or addiction.
It takes more than merely a strained relationship between the non-custodial parent and child before a court will suspend visitation. A good reminder of this is a recent case from the Fourth Department of the matter of _ Carter v. Work_(2012 NY Slip Op 7837).
In that case the mother filed a Petition seeking modification of a prior Custody Order and the suspension of all visitation between the child and respondent father. When the proceeding was commenced, the Family Court issued an Order to Show Cause suspending the father's visitation with the child. The Court later issued a temporary Order reinstating visitation under certain conditions. After a hearing, the Court denied the relief requested in the Petition and reinstated visitation between the father and the child according to the schedule set forth in the prior Order.
The Family Court found that, although the relationship between the father and the child was strained, the mother failed to establish that visitation had been detrimental to the child. The Appellate Division affirmed. The Appellate Division cited the fact that visitation would offer the only hope of restoring the parent-child relationship.
This case highlights a difficult type of situation in Family Law practice; when a child does not want to see the non-custodial parent because of a strain in the parent child relationship. The Carter Court was correct. In many cases visitation offers the only hope of restoring the parent-child relationship. But in many cases, visitation alone is not enough. Often, something must change. In this regard, counseling for the parent and child to address their issues may be appropriate.
The custodial parent often is put in a difficult position in these types of cases. They have the obligation to foster a relationship between the child and the non-custodial parent. But they also have an obligation to protect their child. Plus, it is hard to force a child to visit with a parent who very well may be a very poor parent.
When confronted with a situation such as this, a custodial parent should try to identify and address the underlying problems or issues that cause the rift between the child and the non-custodial parent. This may require consulting with family counselors or even an experienced Family Law attorney. This should be done before the situation becomes one that requires court intervention.
Divorce / Separation Lawyer