Divorce: Enforcing Custody Rights FAQ

Here are some things to think about when you're attempting to enforce your child custody agreement. Visit a child custody lawyer if you need more specific information.


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.


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

  • In most states, a court must find a change of circumstances before even considering a modification of a visitation schedule. Any change must be in the "best interests of the child." When visitation presents a severe conflict with a child's schoolwork, it may be the basis for a modification. Changes could be made to the time and length of a visit, or visitation could be changed to another day. Also, many courts use a standard visitation schedule, and assume that when the child is with the non-custodial parent, he or she is keeping up with homework and school obligations.

    If visitation interferes with school, the non-custodial parent may be violating the terms of the court's order. 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."


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

  • The Visitation Rights Enforcement Act of 1998 was a major step toward reducing problems in enforcing child visitation orders across state lines. The law made it clear to all states that a state visitation order must be given full faith and credit and enforced by all other states. Permanent and temporary visitation orders are covered by the law, and it enforces the rights of both parents.


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

  • 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 court-ordered parenting plan assumes that the custodial parent will promote the child's relationship with the non-custodial parent and encourage visitation.

    Generally, state laws treat visitation and child support issues separately. Child support is a right of the child and visitation is a right of the parent. Most often, courts 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. There are cases where courts reduced spousal support when a custodial parent interfered with visitation and a child's relationship with the non-custodial parent.


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?

  • It's very important that you document your case with law enforcement authorities, so they can use all their resources to assist you, and contact your lawyer for specific help and advice. 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.


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 get help from your lawyer to return to court for modification of your 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.


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 parents previously agreed to follow one religion, like getting married in a certain 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 bar 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 that the court would decline to take any action, and allow both parents to exercise their religious choices with their child.


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. Court decisions exist in which smoking was a factor in deciding custody. This alone may not be enough to require a change in custody, but it doesn't help. Talk to your lawyer about whether or not smoking could impact custody in your case. At the least, parents can avoid smoking around children if quitting smoking isn't an option.



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