As summer is quickly approaching and schedules relax (somewhat), the time is ripe for parental acrimony and mischief. If you are divorced or divorcing parents this summer, make sure to avoid at least ONE bad parenting behavior: DO NOT withhold court-ordered visitation rights.
Just this Monday, the Georgia Supreme Court released a decision that shows the perfect application of O.C.G.A § 19-9-24. Basically, 19-9-24 lists prohibited activity of physical and legal custodians that will bar that party’s ability to file any kind of petition to modify custody, visitation, alimony, contempt or even file for divorce. That prohibited activity: withholding court-ordered visitation.
The Supreme Court found that Cobb County’s Judge Staley ruled correctly when she dismissed a mother’s Petition to Modify Custody and Visitation in April 2010 based upon the father’s showing that more than 100 days of visitation had not taken place between March 21 and November 20, 2009. The Court found that because the filing party was the custodial parent and that the custodial parent was withholding visitation, three of her four counts were dismissible, including her Motion for Contempt.*
Another fact of interest in this case: the child was 11 years old and said he didn’t want to visit with dad. Mom didn't overrrule his reluctance to visit with dad so visitation didn't happen. Well, guess what folks, until that child is 14, he doesn’t really get a say. In its opinion, the Supreme Court cited a 1984 decision that established that the wishes of a child younger than 14 does not trump a parent's rights to visitation. Now, after a child is 14, a Judge is more likely to listen.
Unfortunately, it is not uncommon to see one parent withhold visitation from the other parent. Regardless of whether the withholding is caused by a parent's inability to relinquish control, valid concerns, completely irrational fears, or hatred of the other parent, alienating a child from one parent is rarely in the best interests of that child. And Judges are not impressed by that kind of behavior. If you have concerns about your child visiting with their other parent, consult your attorney to determine if your concerns warrant a modification and before you start interfering with the non-custodial parent's visitation rights or you could inhibit your right to petition the Court for a modification
Read Avren V. Garten.
* The Court specifically mentioned that withholding visitation does not prohibit a withholding party from bringing a Motion for Modification of Child Support since child support is seen as a right of the child, not the custodian.