Divorce: Enforcing Custody Rights FAQ

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  • How can I enforce my visitation rights in another state?

  • Can the mother of my child get a modification of our visitation order because our son has a lot of homework to do?

  • How can I make my ex-wife respect my visitation rights?

  • Can I secretly tape my son's telephone conversations with my ex for possible use in court?

  • My ex is engaged in alienating the child from me. What can I do?

  • My ex-husband's mother took my child from my ex while the child was on a visit, and she may have fled the state. I've called the police. What else can I do?

  • What do you do about religion when the parents can't agree?

  • Will a court look negatively on my smoking around my child?

    Q: How can I enforce my visitation rights in another state?

    A: The Visitation Rights Enforcement Act of 1998 is a major step toward reducing problems in enforcing child visitation orders across state lines. While states are required under the Full Faith and Credit Clause of the United State Constitution to recognize other states' child visitation orders, many states ignore them because of distinctions in individual state laws. The new federal law makes it clear to all states that a state visitation order must be given full faith and credit and enforced by all other states. The new law applies to permanent visitation orders as well as those that are temporary in nature, and enforces the rights of both parents.

    Normally you must register the order with the state that will be enforcing the order. That will allow you to enter that state's courts for enforcement.

    In some states the police will assist in enforcing a visitation order.

    Some states have criminalized interference with a visitation order. Contact a prosecuting agency in the relevant state to see if that's a possibility in your case.

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    Q: Can the mother of my child get a modification of our visitation order because our son has a lot of homework to do?

    A: In most states, a court must find a change of circumstances before even considering a modification of a visitation schedule. Additionally, any modification must be in the "best interests of the child."

    If the visitation is severely hampering a child's ability to keep up with schoolwork, it may be the basis for a modification, either by limiting time or providing different dates for visitation. Also, many courts use a standard visitation schedule which includes a presumption that when the child is with the noncustodial parent, the child will be completing homework assignments and keeping up with schoolwork. If the child isn't keeping up with the homework because of the visitation, the noncustodial parent is potentially violating the court order.

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    Q: How can I make my ex-wife respect my visitation rights?

    A: Interference with visitation is a serious problem. In many states, it, in conjunction with other problems, could be grounds for a change in custody. "Badmouthing" or talking negatively about the other parent is also a serious problem. A parenting arrangement ordered by the court assumes that the custodial parent will promote the child's relationship with the noncustodial parent and encourage visitation.

    Most states treat visitation and child support as separate issues. Child support is a right of the child and visitation is a right of the parent. So a court won't lower or terminate child support payments because the paying parent isn't getting visitations. The same doesn't necessarily hold true for alimony or spousal support. A judge in New York recently reduced a spousal support figure being paid to the ex-wife because the ex-wife had so "vilified" her ex-husband that their son refused to spend any time with him.

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    Q: Can I secretly tape my son's telephone conversations with my ex for possible use in court?

    A: Generally, under the federal wiretapping statute, the answer is "no." Federal law makes it illegal to tape a telephone conversation unless one of the participants in the conversation consents. But the federal Sixth Circuit Court of Appeals has ruled that a parent may "vicariously" consent for a minor child. If the parent has a "good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child," he or she may not be liable under the federal wiretapping statute. Whether a parent meets this test is up to a jury. There are state laws on this topic as well. In many states, consent from all parties is also required, and there might not be a "vicarious" consent rule.

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    Q: My ex is engaged in alienating the child from me. What can I do?

    A: The law does not approve of Parental Alienation Syndrome ("PAS"). In general, both parents have a duty not to demean the other parent to the child. If the other parent is doing this, you may need to go before a court for more specific language in the custody order, or a contempt of court proceeding.

    Counseling of the child may assist with this, and the therapist would normally be able to testify in a court hearing. The court might even order counseling if PAS is raised by a party.

    PAS can be hard to combat. The best remedy may be to continue to cultivate the best relationship you can with the child.

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    Q: My ex-husband's mother took my child from my ex while the child was on a visit, and she may have fled the state. I've called the police. What else can I do?

    A: It's very important that you document your case with law enforcement authorities, so they can use all their resources to assist you. The grandmother may have committed a criminal act, since many states have criminalized interference with custody and visitation. You may also be able to pursue a civil lawsuit against your ex-husband's mother. The majority of states allow a custodial parent to sue a third party for interference with custody of a child. It's similar to interference with a business relationship. Courts across the country have ruled that the parent-child relationship should be at least entitled to the same legal protection from unreasonable interference as are business relationships. These rulings are a reaction to the increasing incidence of child kidnapping by family members who don't have custodial rights.

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    Q: What do you do about religion when the parents can't agree?

    A: Religious decisions involve protections found in the First Amendment of the United States Constitution, and many state constitutions.

    A court may be able to make certain orders about religion. Where the parties previously agreed to follow one religion, like getting married in the Catholic church, baptizing the child and so forth, the court may be able to order that the child be raised under that religion. The court could not order a parent to attend such services, but could prohibit the parent from taking the child to other services.

    Where a religion is shown to have a negative effect on the child, the court could make a similar order.

    It's also possible the court might not wade into this and will just allow each parent to do as they will when they have the child.

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    Q: Will a court look negatively on my smoking around my child?

    A: Most courts must look at all factors related to the "best interests of a child" in making a custody decision. At least one court has found a custodial parent's smoking to be a relevant factor in changing custody. In that Georgia case, the child was diagnosed with asthma after the divorce and the mother continued to smoke. The court held that the mother's continued smoking in the child's presence showed inadequate concern for the welfare of the child.

    This, alone, may not be enough to require a change in custody, but it doesn't help. If your ex has shown an intention to use your smoking against you, stop smoking around the child. Better yet, stop smoking.

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