Parental Rights in a Volatile Relationship

by Beverly Bird

When it comes to their rights after divorce, parents often think in terms of which spouse gets to do what, especially following high-conflict marriages. Their relationships with their children may turn into constant contests as spouses attempt to “beat” or “best” each other. As a result, many states have enacted specific legislation to eliminate the guesswork as to which parent is entitled to take control and when.

Joint Custody

Courts are understandably reluctant to order any form of joint custody when parents share a volatile history. Exchanging the children frequently in a joint physical custody arrangement involves a great deal of contact between ex-spouses. Their children are usually present and exposed to their animosity. Joint legal custody works best when parents get along well enough to make major decisions together. Courts will usually only order these arrangements when parents testify that they can make it work. Some states, such as Nebraska, issue joint custody orders with specific language regarding how parents are to behave. Both parents have equal rights regarding their children at the inception of the order, but breaking its code of conduct can result in contempt of court charges, including fines and even jail time. The court then usually revokes the joint custody order and gives sole physical or legal custody -- or both -- to one parent. The parent who broke the terms of the order would relinquish many of his custodial rights.

Child Support Issues

Child support issues are frequently the source of tugs-of-war between exes who share a volatile relationship. Non-custodial parents might withhold child support payments because the custodial parent is denying visitation. Custodial parents might deny visitation because the non-custodial parent has fallen behind in child support payments. Neither parent has any legal right to do so, and most states are very specific and firm about this. Child support is a completely separate issue from parenting time. Ex-spouses can’t use it as a tool to enforce or deny parental rights.

Domestic Violence

According to the National Center for State Courts, a substantial number of contested custody cases involve allegations of domestic violence. Some states have taken firm stands regarding this issue. For example, in California, the court will not award physical or legal custodial rights to a parent who has committed an act of domestic violence within the last five years. This is a “presumption,” meaning that the parent might overcome it and at least receive shared rights, but only under very narrow circumstances. For example, he would have to successfully complete a counseling program, and possibly other similar programs as well.

Withholding Visitation

When the court names one spouse as the custodial parent and awards the other parent visitation rights, the law is very clear that this does not give the custodial parent the right to decide when and how her ex will see his children. High-conflict divorces usually result in very specific court-ordered parenting plans, delineating the exact times a child will spend with his non-custodial parent. If your ex denies you these times, document the occurrences. Call the police each time you arrive at her home and she refuses to exchange your child, or if she fails to show up at a court-ordered location for the exchange. You have the right to file a motion with the court to bring your documentation to the attention of a judge. This can potentially result in the court naming you the custodial parent instead. However, your ex does not have to release your children into your care if you’ve been drinking alcohol or if you’re under the influence of drugs. She has the right to protect your children from harm in such circumstances, and she can call the police to document these incidents as well.