Is it a criminal act to withhold/deny parental visitation if it is court mandated? If it is a criminal act, then don’t the police have to enforce and act upon it?
Not necessarily. For intrastate parenting time violations, most state penal codes except situations where the alleged kidnapping victim is the perpetrator’s child from the definition of kidnapping. (From my last review, Oregon’s second degree kidnapping statute contains this exception). This is not to say other crimes do not occur when one parent withholds a child for parenting time – if the parents are verbally or physically abusive at the parenting time exchange, they may commit assault or battery, for example – and willfully defying a court order is punishable contempt of court.
You must bring this issue to the court’s attention if you want to enforce your ordered rights; your court will not enforce its order unless a party brings to the court’s attention something that needs enforcing – there are simply too many orders, and too many things that happen beyond the purview of the bench, for the court to do otherwise – and police officers are, in my experience, unwilling to deal with parenting time issues unless a crime occurs.
How you bring this issue to the court’s attention, however, will depend on the severity of the situation – was it willful? a legitimate misunderstanding? a one-time occurrence? In addition to consulting a lawyer in your area for a thorough review of your case and the laws applicable to it, consider these options:
Informal Court Enforcement: Research the resources in your area for parenting time and custody enforcement. Many states do not require a court motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators, exist. In Michigan, for example, parents who have missed visitation with their children may file a complaint to request make up time within 56 days of the missed visit. A parenting time counselor will review the complaint and issue an opinion in writing to both parents within 21 days. You should consult with a lawyer to learn about the resources available to you.
Contempt: If your ex simply refuses to follow your court’s order, consider filing a motion to have your judge hold her in contempt for disobedience. The judge will order her to comply, perhaps with make up parenting time, and you will create a record of your denied time in the event you need to modify the order later. The procedures for these motions vary by jurisdiction.
Motion to Modify: If your ex purposely denies your time, if your daughter is unhappy or if you suspect something about your current order just does not “work” and a change would be better, consider filing a motion to modify physical custody or parenting time. The standards vary by state. In general, your unhappiness with the order is not enough; you must show a proper cause or change in circumstances since the last order to justify the change. Some states require a higher burden if you are not a joint physical custodian. These motions generally require more time, in and out of court, than the resources mentioned above and thorough preparation. The long-term benefits could be worth the effort, however, if you are legitimately unsatisfied. You must have a lawyer’s assistance for this motion. Do not pinch pennies here. You need a realistic viewpoint if you are going to invest money, time and emotions for a motion.
Document. Be sure to document when you will exercise parenting time and what happens if parenting time goes awry. Confirm the dates you intend to exercise parenting time in writing. Include contact information where you and your daughter can be reached in the event of a last-minute schedule change. Keep a journal to document your concerns – Was your ex-late for pick up or drop off? How did the exchange go? This is somewhat therapeutic, and it will also refresh your memory when discussing your case with a lawyer and if you need to testify in the future. Be precise and professional, and avoid any nasty naming calling – writings from you may be admissible in court as substantive evidence or for impeachment.
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Oregon. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area for additional information and representation.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.