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Interference with Parental Rights of Noncustodial Parent as Grounds for Modification of Child Custody
by Edward B. Borris
Introduction
Interference by one parent in the relationship of a child and the other parent is almost never in the child's best interests. In fact, in extreme cases, actions by one parent to alienate the affections of the child from the other parent, to interfere win the other parent's visitation rights, or to remove the child to a distant state or country can often lead to liability in tort. See generally E. Borris, "Torts Arising Out of Interference with Custody and Visitation," 7 Divorce Litigation 192 (1995). Tort liability is not always an option, however, as many courts refuse to award damages based upon interference with visitation rights. E.g., Cosner v. Ridinger, 882 P.2d 1243 (Wyo.1994).
A noncustodial parent is not always left without a remedy, however, simply because courts in that parent's jurisdiction refuse to recognize tort actions arising out of interference with his or her parental rights. This article discusses a different type of liability which may result from interference with the noncustodial parent's rights: loss of custody. The article will first discuss whether a party may generally obtain a change of custody based upon such interference. The article will then examine specific acts by a custodial parent which may cause a court to change custody, including denial of visitation rights, alienation of the child's affections away from the noncustodial parent, and removal of the child to a distant jurisdiction. The section on alienation of the child's affections includes a discussion of Parental Alienation Syndrome (PAS) and recent cases that have dealt with PAS. The article concludes with a suggestion of possible provisions that practitioners may insert in custody decrees in order to prevent future problems between custodial and noncustodial parents.
Interference Amounting to a Substantial Change in Circumstances
Most courts and experts agree that except in unusual cases it is most important for a child to have a strong relationship with both parents. Thus, courts will typically conclude that an award of custody to the parent who is most likely to foster a relationship between the child and the other parent is in the child's best interests. For this reason, if a custodial parent has demonstrated in the past a pattern of interference with the relationship between the child and the noncustodial parent, unless other facts dictate a different holding, courts will frequently conclude that a substantial change in circumstances justifying a change of custody has occurred.
Not surprisingly, there is a long-standing tradition of awarding a change of custody where the custodial parent has interfered with the parental rights of the other parent. The Court of Appeals of Maryland clearly established this point in Berlin v. Berlin, 239 Md. 52, 210 A.2d 380 (1965). In Berlin, the parties entered into a written separation agreement. Pursuant to the agreement, incorporated into the court's order, custody of the children was awarded to the mother, and the father received reasonable visitation rights. In addition, the parties also agreed that the mother would notify the father if the mother moved out of the Washington metropolitan area. Subsequently, the mother began denying the father his right to visitation. For this reason, the father requested a change in custody. The trial court granted the father's request, and the mother appealed.
Specific Acts of Interference Which May Cause a Court to Change Custody
After a practitioner determines whether the relevant jurisdiction may award a change of custody based upon acts of interference with the noncustodial parent's rights, it must be determined which particular acts will justify such a change. The relevant authority indicates that three distinct fact patterns may justify a change. First, courts often award a change of custody if the custodial parent repeatedly interferes with the noncustodial parent's court- ordered visitation rights. Second, courts are inclined to award a change of custody if the custodial parent alienates the child's affections away from the noncustodial parent. Third, if the custodial parent removes the child to a distant jurisdiction without informing the noncustodial parent of the move, courts frequently order a change of custody. Each of these scenarios will be addressed in turn.
Frustration of Visitation Rights
The most common form of interference with parental rights which is remedied by courts occurs when custodial parents consistently refuse to turn children over to the noncustodial parents for court-ordered visitation. The fact that courts frequently order changes of custody in this circumstance is perfectly understandable, since court-ordered visitation is often the noncustodial parent's only connection to his or her children. If this visitation is frustrated, the child's best interests are clearly injured because the child will be completely deprived of a relationship with the noncustodial parent.
What is the research that supports such a schedule? Where is the data
that confirms that such a plan is in the best interest of the child?
Well, reader, you can spend your time from now until eternity
researching the literature, and YOU WILL NOT DISCOVER ANY SUPPORTING DATA for the
typical visitation arrangement with the non-residential parent! The reality is
that this arrangement is based solely on custom. And just like the short story,
"The Lottery," in which the prizewinner is stoned to death, the
message is that deeds and judgments are frequently arrived at based on nothing
more than habit, fantasy, prejudice, and yes, on "junk science."
This family therapist upholds the importance of both parents playing an
active and substantial role in their children's lives----especially in
situations when the parents are apart. In order to support the goal for each
parent to provide a meaningfully and considerable involvement in the lives of
their children, I affirm that the resolution to custody requires an arrangement
for joint legal custody and physical custody that maximizes the time with the
non-residential----with the optimal arrangement being 50-50, whenever
practical. It is my professional opinion that the customary visitation
arrangement for non-residential parents to visit every other weekend and one
night during the week is not sufficient to maintain a consequential
relationship with their children. Although I have heard matrimonial attorneys,
children's attorneys, and judges assert that the child needs the consistency of
the same residence, I deem this assumption to be nonsense. I cannot be
convinced that the consistency with one's bed trumps consistency with a parent!
Should the reader question how such an arrangement can be judiciously
implemented which maximizes the child's time---even in a 50-50
arrangement----with the non-residential parent, I direct the reader to the
book, Mom's House, Dads House, by the Isolina Ricci, PhD.
Indeed, the research that we do have supports the serious consequences
to children when the father, who is generally the non-residential parent, does
not play a meaningful role in lives of his children. The book, Fatherneed,
(2000) by Dr. Kyle Pruitt, summarizes the research atYale University about the
importance of fathers to their children. And another post on this page
summarizes an extensive list of other research.
Children of divorce or separation of their parents previously had each
parent 100% of the time and obviously cannot have the same arrangement
subsequent to their parents' separation. But it makes no sense to this family
therapist that the result of parental separation is that the child is accorded
only 20% time with one parent and 80% with the other. What rational person
could possibly justify this?
We only support organizations who show an understanding that children need both parents, and that either parent is equally capable of the choice to perpetrate hate or declare peace.
All were familiar with alienation and it's results. Everyone was not only gratified to see PAAO at the event, they all also acknowledged that PA is either a form of Domestic violence or on the continuum of Domestic Violence behaviors.
¿Que es la Custodia Compartida?
Un Estado-niñera, controlador, interventor y protector - 26-4 PADRES ARGENTINOS AUTOCONVOCADOS - 26-4 Padres de parana por la custodia compartida Año 2013 - 26-4 ASSOCIATION - ROBERTO TERRILE - CONVOCATORIA PARA EL 26 DE ABRIL 2013 A LOS TRIBUNALES DE FAMILIA - 26-4, 2013 Padres de la Guarda - 26-4 DERECHOS DE LA NIÑEZ Y ADOLESCENCIA, POLITICA DE ESTADO, YA! - Cibercampaña "vírica" de apoyo al 26-4 más enlaces al final de la entrada El 26 de Abril es el Día Internacional de la Igualdad Parental y la Corresponsabilidad Familiar. Por ello, el mejor... more »
Introduction
What is the research that supports such a schedule? Where is the data
that confirms that such a plan is in the best interest of the child? 
We only support organizations who show an understanding that children need both parents, and that either parent is equally capable of the choice to perpetrate hate or declare peace.
All were familiar with alienation and it's results. Everyone was not only gratified to see PAAO at the event, they all also acknowledged that PA is either a form of Domestic violence or on the continuum of Domestic Violence behaviors.
¿Que es la Custodia Compartida?
Un Estado-niñera, controlador, interventor y protector - 26-4 PADRES ARGENTINOS AUTOCONVOCADOS - 26-4 Padres de parana por la custodia compartida Año 2013 - 26-4 ASSOCIATION - ROBERTO TERRILE - CONVOCATORIA PARA EL 26 DE ABRIL 2013 A LOS TRIBUNALES DE FAMILIA - 26-4, 2013 Padres de la Guarda - 26-4 DERECHOS DE LA NIÑEZ Y ADOLESCENCIA, POLITICA DE ESTADO, YA! - Cibercampaña "vírica" de apoyo al 26-4 más enlaces al final de la entrada El 26 de Abril es el Día Internacional de la Igualdad Parental y la Corresponsabilidad Familiar. Por ello, el mejor... more »
This is an amazing article! Thank you for sharing!
ReplyDeletePRO SE RIGHTS:
ReplyDeleteBrotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425 ~ Litigants can be assisted by unlicensed laymen during judicial proceedings.
Conley v. Gibson, 355 U.S. 41 at 48 (1957) ~ "Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.
Davis v. Wechler, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449 ~ "The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice."
Elmore v. McCammon (1986) 640 F. Supp. 905 ~ "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws."
Federal Rules of Civil Procedures, Rule 17, 28 USCA "Next Friend" ~ A next friend is a person who represents someone who is unable to tend to his or her own interest.
Haines v. Kerner, 404 U.S. 519 (1972) ~ "Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient"... "which we hold to less stringent standards than formal pleadings drafted by lawyers."
Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 ~ Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers.
Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) ~ "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."
NAACP v. Button, 371 U.S. 415); United Mineworkers of America v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969) ~ Members of groups who are competent nonlawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."
Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals ~ The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities."
Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) ~ It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).
Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982) ~ "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law."
Sherar v. Cullen, 481 F. 2d 946 (1973) ~ "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights."
Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. ~ "The practice of law cannot be licensed by any state/State."
Sims v. Aherns, 271 SW 720 (1925) ~ "The practice of law is an occupation of common right."
“Justice is a part of the human makeup. And if you deprive a person of Justice on a continuous basis, it’s really an attack (and not to get religious or anything) but it’s an attack on the human soul. We have, as societies, evolved ideas of Justice and we have done that because human nature needs Justice and it needs resolution. And if you deprive somebody of that long enough they’re going to have reactions…” ~ Juli T. Star-Alexander – Executive Director, Redress, Inc.
ReplyDeleteRedress, Inc. 501c3 nonprofit corporation, created to combat corruption. Our purpose is to provide real assistance and solutions for citizens suffering from injustices. We operate as a formal business, with a Board of Directors guiding us. We take the following actions to seek redress: Competently organize as citizens working for the enforcement of our legal rights. Form a coalition so large and so effective that the authorities can no longer ignore us. We support and align with other civil rights groups and get our collective voices heard. Work to pass laws that benefit us and give us the means to fight against corruption, as is our legal right, and we work to repeal laws that are in violation of our legal rights. Become proactive in the election process, by screening of political candidates. As individuals, we support those who are striving to achieve excellence, and show how to remove from office those who have failed to get the job done. Make our presence known through every legal means. We monitor our courts and judges. We petition our government representatives for the assistance they are bound to provide us. We publicize our cases and demand redress. Create a flow of income that enables us to fight back in court, and to assist our members impoverished by the abuses inflicted on us. Create the means to relieve the stresses on us, as we share information and support each other. We become legal advocates for each other; we become an emotional support network for each other; we problem solve for individuals on a group basis! Educate our judges, lawyers, court personnel, law enforcement personnel and elected leaders about our rights as citizens! Actively work to eliminate incompetence, bias/prejudice, special relationships and corruption at all levels of government! Work actively with all media sources, to shed light on our efforts. It is reasonable to expect that if the authorities know we are watching and documenting, that their behaviors will improve. IT'S A HUGE TASK! Accountability will not happen overnight. But we believe that through supporting each other, we support ourselves. This results in a voice for justice and redress that cannot be ignored. Please become familiar with our web site, and feel free to call. We need each other - help us to help you! Although we are beginning operations in Nevada, we intend to extend into each state in a competent fashion. We are NOT attorneys, unless individual attorneys join us as members. We are simply people helping people. For those interested, we do not engage in the practice of law. You might be interested in this article Unauthorized Practice of Law on the Net. Call Redress, Inc. at 702.597.2982 or e-mail us at Redress@redressinc.com. WORKING TOGETHER TO ATTAIN FAIRNESS