new-york-state family-law
Non-custodial parent fails to exercise visitation -- what can custodial parent do (NY)?
<p>I have a friend, ten years old, who is going nuts because his father has rejected him entirely since he lost shared custody.  But my friend sees his father around town, and this constantly reopens the wound.</p>

<p>Is there anything that can be done legally about this?</p>

<p>Mother petitioned to change the court order because father was physically and emotionally abusive to the child.</p>

<p>The court order that changed the custody arrangement states that father may have visitation at a certain frequency -- one weekend per month, one day per week, something like that.  But since then there have been 0 visits, and father doesn't respond to phone, text, email or snail mail from the child or the mother.</p>

<p>The court order acknowledges that the father has unpredictable shift work, and says father should contact mother to arrange dates for visitation.</p>

<p>I think some sort of mediation would be best, because mother gets extremely nervous in court, and can't afford a lawyer.  The pro bono lawyers in our town are either flaky or impose their own agenda on the person with limited means.  They're not like private lawyers, who have the financial motivation to carry out the client's directives.</p>

<p><strong>Edit:</strong></p>

<p>I found a <a href="https://www.nycourts.gov/IP/parent-ed/pdf/ParentsHandbook.pdf" rel="nofollow">Parents Handbook</a> with an FAQ at <a href="https://www.nycourts.gov/ip/parent-ed/" rel="nofollow">https://www.nycourts.gov/ip/parent-ed/</a>, which says</p>

<blockquote>
  <p>What happens if a custodial parent violates a visitation order?
  Traditionally, courts have been reluctant to impose a jail sentence when a parent withholds visitation, although it has been done. More common penalties for
  the persistent withholding of, or interference with, visitation are the suspension
  of maintenance, transfer of custody, providing make-up time, and/or requiring
  the payment of counsel fees.</p>
</blockquote>

<p>This question makes me sad.</p>

<p>I think the answer will likely not be a legal one but, rather, an emotional one.</p>

<p><strong>Courts have many reasons to be reluctant to impose a <em>duty</em> of visitation upon a recalcitrant parent; so courts typically will not.</strong></p>

<p>I think the best course of action is for mom (or maybe a helpful third party, but coming from mom first would be best) to call and make an emotional appeal to dad something along the following lines:</p>

<ul>
<li>Despite what happened between us, your son loves you very much.</li>
<li>I know that despite what happened, you are a good man. (Even if nobody else actually believes that, be sure <strong><em>dad</em></strong> believes it. So it will be helpful to say this.)</li>
<li>I know you love your son too.</li>
<li>Your son wants to be closer to you.</li>
<li>I would be happy to change the visitation order to whatever you like. (Like above, even if not totally true, it's very helpful to say. It opens hearts, minds and communication channels. If he wants to take her up on this. She should listen and be open to it.)</li>
<li>Please visit your son. He wants and needs a relationship with you.</li>
</ul>

<p>Be proactive and appeal to dad's emotions while lowering the overall level of acrimony.</p>

<p>Since I'm commenting, I'll also add this in parting. As a practical matter, so many legal actions have unintended adverse consequences and therefore just because we <strong>can</strong> do them it doesn't mean we <strong>should</strong> do them in order to get the best outcome. Visitation orders and jail time to enforce child support are good examples of this. Sometimes the acrimony involved in taking away or reducing the amount of time a parent is entitled to spend with their children can cause the parent to spend even less time with the child and ultimately hurt the child. Whose interests and wellbeing should be everyone's top concern. Similarly to the point, putting parents behind bars for not paying child support can make it even more difficult for them the earn the money with which to pay the support they are required to pay. It's a crazy world.</p>
