Child Visitation Is a Right for the Child and for the Parent
If your parenting time or visitation rights are being interfered with, then you need to take action. In most circumstances, the Court will enforce the visitation orders it enters.
What is “Denial” of visitation?
A parent, mother or father, who is denied scheduled parenting time or visitation, in spite of a court order granting you that time is being denied child visitation. The parent denying the contact to you is interfering with custody. In every situation, the overriding job of the court is to seek the best interests of the child. Thus, other than in situations of abuse or neglect, the court is almost always going to enforce the orders of visitation and parenting time it has entered. If interference with visitation continues long enough, the court can even consider that behavior in modifying child custody orders and determining that the parent being denied the time will better serve the minor child as the custodial or primary parent.
When visitation is denied or interfered with on an occasional basis or for a more limited period of time, the court will generally enter an order of make-up visitation, but the court also has other remedies available to ensure future compliance with visitation orders. This includes such things as counseling for the parent denying contact to educate him or her about the importance of following court orders, a monetary fine, payment of attorney fees, among other remedies the court has available.
What if the other parent denies your visitation of parenting time sporadically or for a limited period of time?
When the denial is for a specific period of time, for example, the other parent decides that he or she has “important plans” for a weekend and therefore, is entitled to keep your child for a weekend, how should you address this? Should you ignore occasional interference with visitation and hope that the problem does not occur again? What if you ignore one instance and then the problem happens again a few months later? For many parents in this situation, by the time they elect to file action with the court and get a court date, the denied parenting time problem for which you filed a motion or sought intervention of the court has been remedied. Often, when parents elect to take these issues to court, the remedies will be make-up parenting time, reimbursement of attorney fees and expenses if you’re fortunate and perhaps the court will hold the other parent in contempt or give them a stern discussion about what could occur if this behavior repeats itself. Hopefully this will be sufficient to deter future denials of parenting time.
What if the other parent is consistently or frequently denying you parenting time or visitation in Kansas or Missouri?
If the custodial parent is consistently and routinely interfering with your custody or parenting time, the Court has quite a few remedies available to address the behavior. For example, the court has the ability to hold the offending parent in contempt of court. Contempt penalties may range from a stern pronouncement or statement to the parent, jail time, fines, a change of custody or other financial penalty or remedy. Generally it takes fairly extensive and ongoing denial of parenting time for the court to use that as a basis to make a change in custody (absent other factors that would affect custody). Generally, if a parent is willing to deny ongoing visitation or parenting time to a child, he or she is not able to consider a variety of the child’s needs, including the emotional, psychological and physical needs of the child to have both parents involved in the child’s life, whenever it is feasible (absent situations of abuse or neglect).
Are substantial penalties such as changing custody ever actually imposed by the court?
In trying to maintain stability and consistency for the child, the courts in Kansas and Missouri are generally slow to impose significant penalties. Many parents will feel that the courts are quicker to punish non-payment of child support than they are to punish or address denial of parenting time or visitation. Often, it will take a pattern of repeated denial of parenting time before the court is prepared to impose significant or substantial penalties.
It is also important that you consider the likelihood that the more parenting time or visitation that is denied, the greater likelihood that this behavior will begin to interfere with your relationship with the child. If you are experiencing denial of your visitation or parenting rights, it is important that you promptly and swiftly address this with a court to stop the pattern of denial of parenting time. Don’t wait until you have a strained or more difficult relationship with your child. Take action.
What if my situation rises to the level of a parental abduction or even an international child abduction?
In many situations of child abduction, the other parent has little to no warning signs that the children are going to be taken or abducted. It’s every parent’s worst nightmare to imagine their children being taken or removed from them and when the other parent of your children is a foreign national and they have taken your children, immediate fears of the children being taken to another country can develop. An equally difficult scenario is feeling forced by the court order to turn your children over to the other parent when you know that the parent is abusive, negligent or mentally unstable. Some parents feel a strong temptation to take their kids and “go on the run” or even move to another country.
What are the first steps to addressing an international child abduction issue?
The Hague Convention on the Civil Aspects of International Child Abduction, more commonly known as the Hague Convention was signed into law in our country in 1980 to protect children from international abduction. The Hague Convention seeks and allows for the cooperation in the return of a child to their home country to allow the appropriate court to address the child custody dispute and determine an appropriate outcome.
If you are addressing an issue of international child abduction, you need an attorney knowledgeable in Hague Convention rules, regulations, and procedures, as well as an attorney who understands the requirements to prove the requirement for your child's return to the country from which he or she was taken.
If your child was abducted by their other parent and removed to another country without permission, or your child went on an agreed-upon trip to another country, but has failed to return in a timely fashion, Pingel Family Law can help. We can help you determine if the country your child is wrongfully staying in is a member of the Hague Convention, explain the process for having your child returned, help you file the appropriate paperwork to initiate the return process and advocate for your parental rights until the time your child is returned to your arms. If you have illegally taken your child to another country in violation of your custody order or wrongfully overstayed an agreed trip, we can help you secure your child's safety and try to assist with minimizing the consequences you may be required to face.
Unfortunately, international custody and parental abduction cases are drawn-out and complicated. While advocating for a resolution of your matter, you need an attorney who can help you understand the steps and provide the compassion and support you need in this stressful time.
Are you worried that your child could be abducted in the future?
There are a number of things you can do to proactively try to minimize the risk of abduction in the future. Depending on the severity of the threat of risk or harm and the likelihood of possible abduction, you can request a number of abduction-prevention remedies including that the visitation rights of the other parent be supervised, that the other parent be required to post a bond, entering the child’s name in the passport issuance alert program and even surrendering the child’s passport to the court or requiring that you be permitted to maintain possession of the passport. Additionally, you can advises the child’s school or daycare or other care providers or extracurricular activities of the custody orders and provide them with a copy of the custody orders. Finally, if your child is old enough, helping him or her memorize essential contact information such as the child’s address and your phone number for an emergency will help the child be able to give crucial information if such an abduction occurs. Finally, if you obtain a court order that prevents the other parent from removing your child from the country, you can enroll the child in the US State Department “Prevent Departure” Program.
Why Does the Hague Convention Matter to Me?
The Hague Abduction Convention is designed to protect children from the harmful effects of international abduction by a parent by ensuring and encouraging the prompt return of abducted children to their country of residence, and to organize and secure the rights of access to a child, hopefully reducing the risk that a parent will try to engage in the abduction at all. The premise of the Hague Convention is that custody and visitation disputes should be decided by the court of the child’s residence. US Court orders may not be recognized in some countries, each country has individual rules and laws however, each country that has signed the Hague Convention has agreed to work with the Central Authority to address international child abduction issues in an orderly fashion. The Central Authority will help you locate your abducted child, help find collaborative solutions among the countries involved and help facilitate and oversee the return of the child when appropriate. Filing a case under the Hague Convention does not guarantee that your child will be returned. Generally to seek the return of your child, you must first be able to prove:
- That your child was a resident in one Convention country, and was wrongfully removed to or retained longer than agreed upon period in another Convention country;
- The removal of your child is considered wrongful if it was in violation of your custodial rights either in a court order or through history and circumstances and you have been exercising those rights or you would be exercising them but for the removal of your child from your lawful custody;
- The Convention must have been in effect between the two countries when the wrongful removal occurred (the dates are different for every country); (It is also worth noting that in may circumstances, when a country joins the Hague Convention, the country will not automatically become an international child abduction partner with all other countries that have joined the Hague Convention. Countries must agree to cooperate with each country involved).
- The child must be under the age of 16.
- What Defenses Can the Other Parent Raise if I File a Petition for Return of My Child?
- Under the Hague Convention, a court may deny the return of an abducted child if any of the following defenses apply:
- There is a substantial risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in a terrible situation;
- The child does not want to be returned and has reached an age and level of maturity for which the court reasonably account for the child's views; or
- More than one year has gone by since the wrongful removal or retention has occurred and the child is now settled in his or her new environment.
- The party seeking the child’s return consented to or later acquiesced to the child’s removal or continued presence in the other country;
- The return of the child would violate fundamental principles of human rights and basic freedoms in the country where the child is being held.
- The parent seeking the child’s return was not actually exercising custody rights at the time of the wrongful removal or retention; Note: Determination of these exceptions varies from country to country.
It is also worth noting that partner countries in the Hague Convention also agree to support and promote peaceful exercise of parenting time/visitation rights for their children within other partner countries. As a parent, if the country sheltering your child finds an exception present such that the child is not required to be returned, you still have the opportunity to establish and seek to enforce visitation or parenting time rights in the partner country.
At Pingel Family Law, we have successfully represented parents in complex matters involving international travel issues, as well as domestic and international child abduction issues. Whether you are a parent doing everything you can to desperately try to find and secure the return of your abducted child or you are a parent who has fled to another country and needs to figure out how to return to the United States, we can help you.
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