When a noncustodial parent is denied access to his or her child, the traditional recourse has been for that parent to file a contempt allegation with the court requesting a hearing and the court’s finding that the custodial parent is in contempt. This is often a long and drawn out process that leads to even more time away from the estranged child potentially causing even more alienation between the noncustodial parent and the child and result in little more than a warning from the court or possibly a fine after repeated offenses.
A custodial parent may have many personal reasons for denying the other parent access to a minor child even when it is in violation of a court order. Those reasons, however valid the parent may feel the reasons are, will not excuse disobeying a court order of parenting time. Valid reasons for such denial must be approved by the court before parenting time is denied absent a situation of emergency and abuse. Under Missouri’s statute 452.400, as revised August 28, 2005, a noncustodial parent in Missouri has several compensatory avenues available that are not available under a traditional contempt statute and not available in many other states. When one parent is found to intentionally deny the other parent court ordered time with a child, the traditional contempt-restricted recourse has been expanded to permit additional court orders and possibly attorney’s fees. The court in Missouri now has the following creative options when the court finds that the custodial parent has intentionally denied the other parent access to the child without good cause:
- The court may order “a compensatory period of custody, visitation or third-party custody at a time convenient for the aggrieved party not less than the period of time denied;
- The court may order “participation by the violator in counseling to educate the violator about the importance of providing the child with a continuing and meaningful relationship with both parents;”
- The court may assess “a fine of up to five hundred dollars against the violator;”
- The court may require the “violator to post bond or security to ensure future compliance with the court’s orders;”
- The court may order “the violator to pay the cost of counseling to reestablish the parent-child relationship between the aggrieved party and the child;” and
- The court may enter a judgment, “in an amount not less than the reasonable expenses, including attorney’s fees and court costs actually incurred by the aggrieved party as a result of the denial of custody, visitation or third party custody.”
The statute also permits the court to order alternative dispute resolution and requires the clerk to forward information about such programs. Judges often prefer this method and will require it before they will address the actual motion. This is due to the common perception among experts that children benefit by decisions made jointly by the parents more so than those made by a judge. If such alternative dispute resolution (usually in the form of mediation) is unsuccessful and the parties cannot reach agreement the case will proceed to the court. Although mediation may be ordered by the judge neither party is thereby forced to give up the right to a relationship with their child. After a hearing the judge may determine that a party has refused to comply with a court order of custody “without good cause” and order a remedy anywhere from one to all of the above listed possible remedies as well as traditional contempt remedies and attorney’s fees if properly requested. Since denial of custody is such a serious matter the law allows individuals to fill out these motions without assistance from counsel and requires the clerk to make such forms available to the public. Most jurisdictions offer such forms on line.
While it is possible for a person to file a Family Access Motion pro-se, proceeding without an attorney in such a matter may cost an individual the opportunity to fully present their case and/or cause them to waive some interests that must be asserted to be awarded by the court. Once such a matter is tried before a court it is not likely the court will revisit the matter upon the same facts. This makes it imperative that the case be properly tried the first time it is presented. This is usually accomplished by using a good attorney. The statute requires that such a motion be served upon the alleged offender and without such service properly accomplished the matter will not proceed. The clerks may assist in the service to some degree. Missouri statute 452.400 requires the court dispose of the matter of family access within 60 (sixty) days after the accused party is served with such a motion unless such time is waived by the parties or determined to not be in the best interest of the child. A delay will often occur when the court rules it to be in the child’s best interest for the parents to attend mediation or some form of alternative dispute resolution prior to hearing the matter.
As explained above cooperation between parents is usually viewed to be in the best interest of the child so that would be a valid reason for the court to delay such final disposition. The parties could also waive such time restriction to allow their attorneys to work toward a suitable solution for both parties. Missouri’s statute expanding traditional contempt avenues and allowing alternative methods of punishing a depriving parent and restoring a relationship with the deprived parent truly takes the child’s best interest into consideration. It has become clear to the majority of specialists and people who work with divided families that a child’s best interest is served through a healthy and meaningful relationship with both parents. Most states use the standard of “best interest of the child” in establishing family law and policy and therefore it only makes sense that additional states consider implementation of a statute similar to Missouri’s 452.400.
Bridget Schell is an associate attorney in the Kansas City, Missouri office of Cordell & Cordell, P.C.