Violation of Custody and Visitation Orders in Georgia

Child custody issues are often the most contentious aspects of a divorce, in Georgia and every other state. You'd think that once parents (or the court) have resolved these issues, that's the end of the story. But that's not necessarily true. Unfortunately, some parents violate custody and visitation orders. When they do that, they could face dire consequences—including losing custody or penalties for contempt of court.

Denying Visitation and Other Interference With Custody

Under Georgia's custody laws, court orders on child custody must include a parenting plan that spells out when the children will be in each parent's care. (Ga.Code § 19-9-1(b) (2023).) There could be valid reasons that a parent might not always be able to follow the plan exactly, such as when a child is sick—or a parent is sick and can't take the child for the scheduled parenting time. When something like that happens, it's important to notify the other parent as soon as possible and make appropriate arrangements, which might include make-up time with the child.

Otherwise, parents must do everything possible to adhere to a visitation schedule. Concocting excuses will ultimately land you in hot water with the court—and may lead to a change in custody in some cases (more on that below).

Judges generally won't find that parents are in violation of custody orders for small or one-time infractions like being late to exchange the children. But judges are likely to find that a parent has violated the custody and visitation orders in the following circumstances:

• Blocking visitation or custody rights. A custodial parent may not deny visitation unless there's a legitimate reason to believe the child is in immediate danger of serious harm, such as when the other parent is intoxicated or violent when coming to pick up the child. Similarly, noncustodial parents may not refuse to return the child after visitation (more on that issue below). Even if you suspect that the other parent is abusing your child, you must go through proper legal procedures, such as seeking a temporary family violence protective order, rather than simply withholding visitation. (Learn more about domestic violence and child custody in Georgia.)
• Denying visitation for nonpayment of child support. Custodial parents may not use visitation as a weapon when the other parent isn't paying child support. Granted, it can ultimately hurt the children when noncustodial parents don't pay child support, but maintaining the parent-child relationship takes precedence. There are other (legal) methods available to enforce child support.
• Claiming that children are refusing to visit. As the custodial parent, you're responsible for making sure your child spendd time with the other parent, as provided in your current parenting plan. If your child is refusing to go along with visitation, you shouldn't just throw up your hands and lay the blame on the kid. Even with older teenagers (who can obviously be difficult to convince), you must try everything in your power to make the visitation happen. Otherwise, you might find yourself in another stressful and costly court fight.
• Blocking communications. Depending on how their custody orders are worded, custodial parents might be in violation of those orders if they block phone calls, text, or emails between their children and the noncustodial parent. Even if the orders don't specifically mention these communications, a judge might find that cutting off contact is a violation of the parenting plan, which must include a recognition that "a close and continuing parent-child relationship" is in the child's best interests. (Ga. Code § 19-9-1(b)(1)(A) (2023).)
• Consistently missing visitation. On the flip side, if a noncustodial parent consistently abuses the visitation schedule—by repeatedly and consistently being late for visitation or failing to show up at all—a judge could view that behavior as a violation of the custody orders.

Consequences of Interference With Custody or Visitation Rights in Georgia

In general, judges don't look kindly on violations of court orders. But they tend to take a particularly hard line on interference with custody and visitation, because it can harm the children. In some cases, parents may face consequences including a change in custody, contempt proceedings, or even criminal charges.

When Interference With Visitation Can Lead to a Change in Custody

Noncustodial parents who have faced repeated interference with their visitation rights may request a change in custody. Georgia law allows a modification of custody if there's been a change in circumstances, and a different custody arrangement would be in the best interests of the child. (Ga. Code § 19-9-3(b) (2023).) Georgia's courts have consistently held that repeated denials of a noncustodial parent's visitation rights, or a pattern of intentional actions meant to thwart visitation, warrant a change in custody. (Mahan v. McCrae, 522 S.E.2d 772 (Ga. Ct. App. 1999).)

Note that judges generally wouldn't consider a long distance move to be interference with visitation—as long as the custodial parent followed Georgia's requirements for parental relocation and wasn't moving for the purpose of hindering visitation. But the noncustodial parent still has the option of requesting a change in the visitation schedule, such as by allowing longer parenting time during school vacations.

Motion for Contempt of Court for Visitation Violations

When a parent has been violating custody and visitation orders, the other parent may seek to enforce the orders by fiing a motion (a written legal request) for contempt of court.

Contempt of court is a serious matter that can result in the imposition of fines against the offending parent. A judge might also impose a jail sentence, but it's unusual to see this for a first violation. If a judge finds that a parent has been violating provisions in a custody order, the judge will more typically order the parent to obey at risk of future penalties, including modification of custody or visitation.

In one Georgia case, for instance, a custodial father repeatedly failed to put his son on the plane for scheduled visitation with his out-of-state mother, even after she sent him the plane tickets—and even after previous contempt hearings. After the mother filed another motion for contempt, the judge found the father in contempt, again ordered him to make sure the boy traveled for visitation, and this time ordered him to share the transportation expenses. The father appealed, but the appellate court found that the order to share expenses was a permissible modification of the visitation order. (Stewart v. Stewart, 245 Ga. App. 20 (Ga. Ct. App. 2000).)

Criminal Penalties for Interference With Custody

Noncustodial parents can be charged with a crime if they intentionally keep a child after the end of a scheduled visitation time. If the crime happens in Georgia, it's a misdemeanor for the first two offenses but a felony for the third offense. If the noncustodial parent takes the child across state lines while committing the crime, it's a felony even for a first offense. (Ga. Code § 16-5-45(b), (c) (2023).)

Other Remedies for Interference With Custody or Visitation

Judges have other options if they don't believe that a parent's interference with custody or visitation warrants changing custody or amounts to contempt of court or criminal interference with custody. Some of these remedies include:

• ordering make-up visitation time to compensate the noncustodial parent for time lost with the child
• ordering a parent to attend parenting classes
• ordering a parent to pay any costs resulting from their wrongful behavior
• changing the times for visitation, and
• changing the children's transportation arrangements or the pick-up location.

Getting Help with Custody and Visitation Violations

Not every violation of a custody or visitation order has to end up in court. There's nothing to stop parents from attempting to reach a resolution between themselves. This not only benefits them, both emotionally and financially (think legal fees), but it also spares the children from getting caught in the middle of an upsetting court battle.

If you both want to resolve things amicably, but you're having trouble reaching your goal, you can try custody mediation. The cost of mediation varies, but the two of you can split the mediator's fee. And a successful mediation will normally be considerably less expensive and stressful than a full-blown hearing in court. But in the event you still can't work things out, you should consider contacting a knowledgeable family law attorney.