First and foremost, what happens if the non-custodial parent misses visitation? Well, the children suffer. Broken promises hurt children. So do erratic schedules (e.g. Mom said she’d pick me up from school and she didn’t).
Additionally, and this reason is legally significant, if the non-custodial parent misses visitation, that parent violates a court order. Many judges take these matters personally. They don’t accept any excuses, such as miscommunication, no matter how valid an excuse might be.
These consequences are immediate consequences. Further down the road, non-custodial parents that miss visitation frequently lose what little visitation privileges they have.
what happens if the non-custodial parent misses visitationCommon Custody/Visitation Violations
All visitation and custody orders are court orders. The judge issues them following a trial or approves them following an out-of-court settlement.
Generally, these orders have lots of moving parts, so violations are common. Mom’s date might run long or Dad might get stuck in traffic.
In this respect, visitation/custody order violations are like traffic violations. No one can drive more than two or three miles without breaking at least one traffic law. Similarly, no parent can live more than one or two days without violating at least on custody or visitation court order. Common violations include:
- Denial of live visitation,
- Skipping scheduled visitation,
- Disparaging the other parent within the hearing or presence of the children (these violations usually include disparaging social media posts),
- Denial of telephone, FaceTime, or other electronic visitation, and
- Misuse of electronic visitation.
All drivers break traffic laws, but not all drivers get traffic tickets. Likewise, all parents violate court order, but not all parents face adverse legal consequences because of those violations.
Usually, if a parent shows a pattern of contempt, judges step in. Ian Fleming, the James Bond novelist, once wrote that “once is happenstance, twice is coincidence, and thrice is enemy action.”
Incidentally, the written court order is the only thing that matters in this context. Parents often make side agreements that alter visitation schedules. If one parent reneges on that agreement, the other parent is violating a court order.
Other violations, such as neglect and abuse violations, are much more serious. If the moving party proves these violations in court, judges usually take swift and drastic action.
Demand Letter
Sometimes, if the non-custodial parent misses visitation, the custodial parent’s lawyer sends a demand letter to the wayward parent. Basically, a demand letter is a warning shot. These letters detail violations, warn recipients about what’s next, and give recipients the chance to make amends.
These letters, although they have no legal consequences, are very effective in many cases. If the parents get along reasonably well, the non-custodial parent might just need a second chance. If the parents don’t get along well, a motion to enforce, which is the next step, throws fuel onto a fire.
To go back to the Fleming quote, a custody violation demand letter is often a good idea at the “coincidence” phase.
Motion to Enforce
In petty violation cases, like the ones in the bullet list above, a motion to enforce is usually the next step up. For major violation cases, it’s usually the first step. In most states, judges hold emergency hearings in these situations.
The moving party must prove the violation or violations by a preponderance of the evidence (more likely than not). Because of this low standard of proof, a he said, she said case could hold up in court. However, the judge could just as easily side with the other parent in these cases.
Medical records often prove abuse or neglect, and not in the way you think. Multiple ER visits in a relatively short period of time are a red flag. Even clumsy children don’t regularly walk into doors or fall down the stairs. Similarly, parents who repeatedly change a child’s primary physician usually have something to hide.
Lay witness testimony is usually effective in multiple technical violation cases. A neighbor doesn’t need to know the specifics. A neighbor just needs to know if Mom or Dad was or wasn’t there at a given time.
Keep detailed records in these cases. Each infraction is a separate court order violation. The same principle applies in failure to pay support matters. Each missed payment is an independent court order violation.
Penalties for Violating Custody or Visitation Court Orders
As mentioned above, if the non-custodial parent misses visitation, the children suffer most of all. This section focuses on penalties for parents.
Let’s start with denial or live or electronic visitation. There’s no hard and fast rule as to what separates coincidence from enemy action. On the low end, the judge may let the wayward parent off with a “don’t do that again” warning. Multiple violations usually merit a fine, attorneys’ fees, a counseling requirement, and, in many cases, modification of the existing court order, usually to allow makeup visitation.
These same principles apply to disparaging remarks. The court’s reaction is usually somewhere between a warning and a gag order.
If the non-custodial parent misses visitation, short-term consequences include a fine, attorneys’ fees, counseling requirement, and, in rare cases, jail time.
Over the long term, many judges assume, rightfully we might add, that parents who consistently skip visitation have little interest in a relationship with the child. So, for example, the other party’s motion to terminate parental rights might succeed.
Additionally, if such parents request more visitation time from the court, judges often use the failure to attend previous visitations to deny that request. Read when can you deny visitation to the non-custodial parent for more occasions.
On a related note, an enforcement order often includes a modification order. To deter future misconduct, judges often limit contact between the wayward parent and the child.
We close with another note about self-help remedies. Parents who try to visit their children outside of designated hours could face stalking or other charges. Parents who remove the child from the other parent’s care could be charged with kidnapping.
Many parents feel like they’re doing the right thing in these situations. That might be true. But in court, a judge or jury decides what’s right and wrong.
Related reading on the subject: