Representing the Noncustodial Parent

Whether the parents are in the process of obtaining a divorce or legal separation, have established paternity, have separated from a non-marital relationship, or wish to change custody, you will have many occasions to represent the noncustodial parent. Although their time with their children and their say in the child’s upbringing is more limited, noncustodial parents still play an important role in the child’s life, and their legal rights must be protected.

 

Jurisdictions vary as to what they require for visitation agreements, and the standard forms often differ between the courts handling divorces from those handling non-marital agreements. However, most courts have standard forms that you either must use or that can guide you in selecting the terms agreeable to both parents. It is also becoming more common for courts to require, or at least offer, mediation in the early stages of custody and visitation proceedings. Mediation can provide a good way for parents to discuss their concerns and agree upon many, if not all, of the terms of the agreement. If there are still items to be discussed, or if mediation is not offered, it may be a good idea to schedule a meeting with the opposing attorney and the custodial parent in order to work out the remaining terms. If the parties cannot agree, you will need to schedule a hearing to complete the schedule. Generally, the attorney representing the custodial parent will then be required to draft the custody and visitation order.

 

If either parent wants to modify the visitation schedule, this can also be accomplished by mediation, an agreement between the parties, or a hearing. In some jurisdictions, an agreement can be prepared by the custodial parent’s attorney and submitted to the court, as long as both parties agree, without a formal hearing. This can be an acceptable option, as long as the noncustodial parent has the option of consulting with an attorney prior to signing the agreement. If you are representing the noncustodial parent, you should request that the custodial parent’s attorney add your name and signature to the proposed agreement. This way, you will be notified of future requested changes.

 

If the parents cannot agree on the terms of the modification, a hearing will need to be scheduled. Depending on the age and maturity of the child, the court may want the child to testify, may speak to the child privately, or may appoint a guardian ad litem to investigate the child’s wishes and the child’s best interests on behalf of the court prior to making a modification order.

 

Unfortunately, parents often do not follow the court-ordered visitation schedule. If there are occasional changes, you can suggest that the noncustodial parent be flexible. However, all changes should be documented in writing by the noncustodial parent, including the dates and times of denied visitation, the reasons given, and any other pertinent information. It will take many violations of the visitation agreement, but courts may eventually order a change of custody based on a refusal to follow the court order. Also, the noncustodial parent can generally seek assistance from local law enforcement to enforce the terms of the visitation order. While this can be effective, it can also be very detrimental to the child, so it should be used as a last resort.

 

Whatever the frequency or reasons for a denial of visitation, the noncustodial parent must understand that it is not an excuse to withhold child support payments. Unfortunately, child support must be paid even if the visitation order is not followed. In fact, a refusal to pay child support can result in a loss or reduction of visitation, even if the noncustodial parent wrongfully withheld visitation rights. The courts take the payment of child support orders very seriously, and clients must be made aware of the consequences of nonpayment.

 

Rarely, courts will order supervised visitation. This generally only occurs when the there is a showing that the noncustodial parent will harm the child, has abused the child in the past, has a mental illness that may cause harm to the child, or has a substance abuse problem that could endanger the child. Incarceration of the noncustodial parent, alone, is generally not sufficient. Neither is a sexual relationship between the parent and a paramour without a showing of harm to the child.

 

If you are representing a noncustodial parent faced with the possibility of supervised visitation, require a showing of potential harm. If there is a showing, get as much supervised visitation as possible, and request a follow-up hearing in a few months, using the chaperone as a witness, if possible. Instruct the client to cooperate and to be patient in order to establish the parent’s trust and concern for the child. Even if the noncustodial parent will never obtain unsupervised visitation, your obligation is to get the noncustodial parent as much visitation as possible to establish or maintain a relationship with the child.

 

If the custodial parent wrongly accuses the noncustodial parent of any ground for supervised visitation, I would suggest requesting custody of the child and the appointment of a guardian ad litem to determine the child’s best interest. This will be a long and costly battle, but the alternative will likely be a custodial parent who will not follow a court visitation order and try to deprive the noncustodial parent of his or her rights, harming the child in the process.