New York State Bar Association
Children and the Law Committee
CHILD
SUPPORT AND FAILURE OF VISITATION
Judith
M. Reichler, Esq.
“Failure of visitation” is what occurs when a parent does not spend any time with the child, or doesn't live up to an agreement for visitation. This would include a parent who never visits or calls, fails to show up at a designated time, returns the child early or late, changes plans without finding out if it would be convenient, or moves out of the area so that visitation becomes difficult and/or infrequent. Even though some noncustodial parents complain of their inability to obtain visitation, many do not exercise their full visitation rights, leaving the child and the custodial parent without a remedy
Failure of visitation has immediate devastating consequences for a child, including damaging the child’s self esteem. In addition, over time, the child will stop wanting to spend time with the parent, for fear of being disappointed. Then, additional problems occur because the noncustodial parent may charge the custodial parent with visitation interference or claim the child is emancipated because the child refuses visitation offers. While there are penalties that can be imposed on a custodial parent who interferes with visitation, there are no similar penalties that are imposed on a noncustodial parent who fails to take the child at the designated times or, indeed, fails to visit at all.
There are restraints on a custodial parent who wishes to move to a place where it would interrupt visitation, but there are no restraints on a noncustodial parent who chooses to move away from the area where the child lives. This imbalance in consequences allows only the noncustodial parent to assert the right of visitation. It ignores the child's right to visitation1 and the noncustodial parent's duty to provide nonfinancial nurturing to the child. The noncustodial parent has an enforceable right to visitation, but no correspondingly enforceable obligation.
Both courts and lawmakers appear to assume that, as long as a parent’s financial responsibilities are met, this satisfies the responsibilities of parenthood. The failure of one parent to assume physical care for a child leaves the other parent to do it all. Requiring one parent to provide only monetary support, while the other provides both monetary and nonmonetary support, creates an imbalance.2
POSSIBLE REMEDIES
Even though there are no provisions
in
In an agreement. The parties could include in their agreement or stipulation a provision for restitution should the noncustodial parent miss visitation or fail to exercise visitation rights. This could be done by authorizing increased child support or compensation if the custodial parent could prove the damages incurred for failure of the noncustodial parent to visit, including the value of caretaker services provided by either the custodial parent or by a third party, and other economic losses suffered by the custodial parent as a result of the default.
A more efficient alternative would be to provide for some sort of "liquidated damages" for failure of visitation, to compensate the custodial parent for loss or inconvenience. This would not make it up to the child, but it might act as a better incentive for the noncustodial parent to meet visitation responsibilities because the custodial parent would be relieved of the burden of proving actual damages.
This would be especially appropriate if the noncustodial parent insists on a provision in the agreement providing for a child support set-off for any period of time during which the custodial parent refuses to grant authorized visitation without good cause. Both parents should be protected from failure of the other to share in the care of the child..
Sometimes a noncustodial parent will insist there be a provision in the agreement forbidding the custodial parent from moving outside a certain area without consent, because it might interfere with visitation rights. It would be reasonable, then, to include a provision similarly requiring the noncustodial parent to obtain consent before moving to an area where visitation would be interrupted and to find other arrangements that would assure continued visitation with the child, without unnecessary difficulty..
In court. The court could use its contempt powers to require the noncustodial parent to comply with a visitation order. This has not been done, no doubt because it is thought the court cannot require a person to spend time with his or her child.3 At the very least, failure of visitation should be taken seriously and be considered when establishing child support amounts.
If there is no agreement, there may still be ways to address the noncustodial parent's failure of visitation. The percentages in the CSSA were developed under the assumption that there is to be an "ordinary" amount of visitation and an "ordinary" amount of expense associated with it4. Where there are extraordinary expenses associated with visitation, or where there is extended visitation that reduces the custodial parent’s expenses, subsection nine of the "paragraph f" factors in the CSSA would allow for a possible reduction in the child support ordered.5 This provides a financial incentive for the noncustodial parent to provide nonmonetary care for a child,6 but no penalty for failing to do so. There is no parallel factor which provides for an upward adjustment in child support if, because of failure of visitation by the noncustodial parent, the custodial parent does not have the benefit of the time the children would spend with the noncustodial parent and the corresponding absorption of some costs. While the noncustodial parent is to be rewarded for "volunteering" to provide care, there are no consequences for failing to do so. Contrast this with the coercion that is applied should the custodial parent interfere with the noncustodial parent's ability to exercise the right to provide this care
Under subsection ten of the “paragraph f” factors, however, a custodial parent may argue for increased support if the noncustodial parent does not exercise visitation rights. Since the percentages in the CSSA were developed from data that took into consideration the expenses that might be borne by a noncustodial parent during visitation -- and the resulting reduced expenses for the custodial parent, both in actual cost and in time spent with the children -- an increase should be in order if the noncustodial parent does not spend sufficient time with the children..
Where it can be shown that the noncustodial parent does not exercise an ordinary amount of visitation with the children, the amount of child support should be increased to make up for the additional costs associated with caring for the children more than was contemplated by the statute. These costs would include everything from food, to child care, to job and professional opportunities lost.
Return to Program Announcement
Go to next article in program book
Links to other sites, or links
to this site from any other sites, do not imply any endorsement of, or
relationship with, such other sites.
Last updated
1
"Visitation is a joint right of the noncustodial
parent and of the child." Weiss v. Weiss, 52 NY2d
170, 174 (1981).
2 For an excellent discussion of this imbalance, see Czapanskiy, Volunteers
and Draftees: The Struggle for Parental Equality, 38 CAL. L. REV. 1415
(1991).
3 Caregiving for
children is seen as a personal service, which the law cannot require. The reasoning can be summed up by this
decision from
Appellant
wishes us to extend that holding [that the father--under the uniform parentage
act--has the privilege of visitation] to include a reciprocal right on the part
of the child in that she may compel the noncustodial
parent to visit. This we decline to do.
. . . The court cannot compel a noncustodial parent .
. . to care for and love and visit with the child. The court can only compel the parent to
provide monetary support.
Louden v. Olpin, 118
4See