After divorce, parents sometimes have trouble following agreements or court orders relating to child custody and visitation. When one parent interferes with the other parent’s visitation, it can lead to frustration, upheaval, and serious legal consequences.
Child Custody and Visitation in New Jersey
When parents (whether married to one another or not) of minor children decide to end their relationship and separate or divorce, they usually end up with child custody orders. Child custody includes legal custody, which refers to a parent’s authority to participate in major decisions regarding a child’s health, education, or general welfare; and physical custody, which refers to the child’s actual presence with a parent.
Joint legal custody means that parents share major parenting decisions, while joint physical custody means that children live with each parent for nearly equal amounts of time. While New Jersey courts commonly order joint legal custody, they generally order joint physical custody only when the parents are both committed to the idea of shared parenting.
New Jersey law no longer uses the term “visitation,” but if a child spends more than about 72% of time with one parent, the court will designate that parent as the “primary parent of residence” (PPR) and the other parent as the “parent of alternate residence” (PAR). In more traditional terms, the PPR has physical custody, and the PAR has visitation.
Courts in New Jersey base child custody decisions primarily on children’s best interests. Children’s physical and emotional welfare are the highest priorities, but judges also assume that children benefit from having two involved parents. Parents can make their own time-sharing agreements as long as the schedule meets their child’s best interests. If parents can’t agree, the court will usually order them to try and work it out through mediation. If mediation is unsuccessful, the court will order a parenting plan.
When designating a primary parent, courts consider many factors, including which parent functioned as the main caretaker prior to separation, and any important practical considerations, such as the location of the children’s schools or the parents’ work schedules. Because the law favors children spending significant time with each parent, judges look carefully at each parent’s willingness to encourage and facilitate a relationship between the child and the other parent. A parent who interferes with such a relationship will have a distinct disadvantage in a custody dispute.
For more information about child custody and visitation in general, see Child Custody in New Jersey: The Best Interests of the Child, by Susan Bishop.
Violating Custody and Visitation Orders
Interference can be anything that inhibits the relationship between the child and the other parent, including not only extreme behavior, such as preventing contact entirely, but also things like intercepting letters or emails, blocking phone calls, or continually scheduling children’s activities away from home during the other parent’s normal visitation time. While courts encourage parents to stay in touch with children during separations, behavior such as telephoning constantly or dropping by the other parent’s home uninvited is considered disruptive. Interference also includes speaking negatively about the other parent to the child, as this can reduce the child’s desire to spend time with the other parent.
Denying Visitation or Withholding Child Support
Sometimes, a parent who has not received timely child support payments feels entitled to prevent the late-paying parent from seeing the kids. Parents must understand that child custody and child support are two entirely separate matters. A parent who hasn’t received support on time can contact the New Jersey Department of Human Services, or go to court to enforce payments, but must never use the children as bargaining chips. Similarly, if one parent is blocking access to the children, the other parent must seek help from the courts, not withhold child support.
Children Refusing to Visit
Parents have a duty to encourage children to spend time with the other parent, but courts rarely oversee this. While a court can order a parent to transport a young child to the other parent’s home or mutually designated location, older children become less portable and more difficult to manage. A judge who believes that a child is not spending time with one parent because of the actions of the other will not attempt to force the child to see both parents, but will instead order one of the remedies outlined below, which could include changing the primary residential parent. A court will only order such a change, however, if it finds that it’s in the child’s best interests.
Parent Consistently Missing Visitation
Failing to arrive for scheduled visitation times or constantly arriving late is not in a child’s best interests. Children need to know that their parents care enough to make consistent efforts to spend time with them. Parents that don’t fulfill this responsibility may lose future visitation time with their children.
Consequences of Interference with Custody or Visitation
If a parent violates a court order regarding custody or parenting time, a New Jersey court can order almost any remedy that is fair and appropriate, including holding the parent in contempt. Possible remedies include:
- ordering “make-up” parenting time
- ordering the interfering parent to pay for counseling for the children or for either parent
- ordering the interfering parent to pay any costs resulting from the interference
- changing the children’s transportation arrangements or pick-up location
- changing parenting time either temporarily or permanently
- ordering the interfering parent to participate in community service, or
- ordering the arrest and imprisonment of the interfering parent.
Interfering with court-ordered parenting time can amount to a criminal act under New Jersey law. A parent who conceals a child from the other parent for the purpose of interfering with custody or visitation may serve jail time.
While a belief that the child is in immediate danger is a potential defense, a parent concealing a child for safety reasons must reveal the child’s location either to the New Jersey Division of Child Protection and Permanency or to the police or prosecutor in the child’s county of residence as soon as possible, and always within 24 hours of concealment. A parent with lawful custody who is fleeing from imminent physical danger posed by the other parent also has a defense, provided that the parent reports the child’s location to the appropriate authorities or brings a custody action in an appropriate court as soon as reasonably possible.