By: Ravelle Smith of Cordell & Cordell, PC
Know Your Rights.
In cases in which visitation is denied, the first thing you should know is what your actual rights are. To have established visitation rights, there must first be an order of the Court that authorizes visitation of a party to see the minor child. Usually, an order will set out the actual days in which you are entitled to visit.
If it has, then you are able to refer to it and see exactly what time periods your are entitled to. This may sound like a very basic step, however it is important to note that not all Orders of the Court provide for visitation. In legitimation proceedings, visitation is not awarded unless the mother consents. Therefore, if the mother does not consent, a separate action to establish visitation must be brought before the Court.
In addition, all divorce actions do not conclude with providing visitation rights to the all parties. A divorce decree, within the discretion of the judge and under normal circumstances should include provisions permitting visitation with the child. However there is an exception where the best interest of the child is not served. The Court then bases that denial upon those exceptional circumstances, thus no order is provided establishing any visitation rights.
Attempting to Exercise Your Rights, Witnesses and Custody Logs.
It is very important that you attempt to exercise your visitation every opportunity in which you are provided in the order to have the child. You must be consistent in your attempts, and show an interest in being involved in the child’s life. It is also important to have these attempts documented. Although we would like to think that parents will tell the truth when the best interests of their child are at stake, more often than not, we must assume that there are going to be inconsistencies in the stories between the custodial parent and the non-custodial parent. This is why it is imperative to have corroborating evidence to back up your particular version of events. When visitation is being denied, you must show that the custodial parent has done something to interfere with your rights. In order to avoid it being your word against hers, it is a good idea to have documentation of your efforts. The best form of documentation would be for the custodial parent to admit to not allowing visitation.
However, in cases in which this is not going to occur, it’s great to have a trustworthy witness at your disposal. Mutual friends, grandparents and in limited cases even the child may be able to attest that you were not given visitation on certain days. Letters, emails, and telephone calls expressing your desire to visit or your displeasure from not being allowed to visit are all tools that you can use in documenting your visitation attempts. To this extent, be exact when it comes to affirming when you were denied visitation. Keep a custody log of when you had, or didn’t have, visitation with your child. Keep a journal of the events that occurred on those days. This will make your life a lot easier when you have to attest to how and when your rights were denied. The Custody Calendar software available from dadsdivorce.com’s online store can help you create reports detailing visitation.
If the custodial parent is aware you are taking court action against her, many times this will be enough to propel her into allowing you visitation with the child. When it hasn’t, you have the option of filing a motion for contempt. Disobedience of a court order fixing custody of a child is contempt of court, and may be punished by allocating fines and even jail time. A trial court, while not authorized to change custody, is permitted to change visitation rights in a contempt proceeding. If this is your desire, you may even be afforded more visitation rights with your child than before. If a motion for contempt does not suit your needs, you can also submit a motion to modify visitation or even a motion to modify custody. All of these are allowable methods of judicial intervention. In conclusion, once you know your rights, have attempted visitation and documented those attempts, you are now armed with the devices you need to fight against interference with your visitation. You can allow for some deviation from your ordered visitation schedule. However, when it rises to the level of denial or malicious interference, do not hesitate to take custodial parent back to court. It is in the best interest of the kids to have you involved in their lives, and to that extent you must do all you can do to ensure your presence in their lives.
Ravelle Smith is an Associate Attorney in the Atlanta office of Cordell & Cordell, PC.
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