Most instances of parental interference occur when a parent refuses to abide by the visitation schedule set out in the parenting plan. For example, withholding visitation or refusing to allow the minor child to speak with the other parent on the phone is interference. This type of parental interference with custody is handled by family law courts. Parents whose rights are being denied can file an emergency motion or motion to enforce. There is a level of child interference with custody that will result in criminal charges. For instance, parents who knowingly or recklessly take a minor child for an extended amount of time without lawful authority might face third degree felony charges and a possible prison sentence.
Child kidnapping occurs when a parent forcibly, secretly or by using threats takes or imprisons a child against the child’s will, outside of the authority granted by a parenting or custody plan. An example of child kidnapping is where a parent shows up at a child’s sporting practice, forcibly removes the child, and takes the child to an unknown location. Kidnapping is a first degree felony punishable by imprisonment.
A parent charged with interference with custody or kidnapping has two defenses. The first defense is that the removal of the child or keeping the child away from the other parent was necessary to preserve the child from danger. The second defense to a charge of interference or kidnapping is that the minor child was being exposed to domestic violence or the parent charged with custody interference or kidnapping was fleeing a domestic violence situation.
Even though Florida law prefers that both parents play an equal role in a minor child’s life, a lot of parenting plans identify a primary residential parent. A parent who is being denied visitation or phone contact can seek relief by filing a motion in family law court. Two common motions used in this situation are a motion for contempt and a motion to enforce parenting plan. Motions for contempt ask the court to penalize the non-compliant parent for failing to adhere to the parenting plan. A motion to enforce the parenting plan is less combative and geared toward requesting relief from the custodial parent's interference.
A judge can employ a number of remedies when a parent refuses to honor the details laid out in a parenting plan. Extreme interference that results in parental alienation can be the grounds for a judge to modify a parenting plan. Judges can switch the primary residential parent, liberally extend visitation and telephone contact, or make changes to substantial portions of the visitation schedule. Less severe remedies imposed by judges may include temporarily increasing visitation to make up for lost time.
A common myth is that failure to pay child support is justification for denying a parent visitation. Child support and visitation are separate issues. The custodial parent cannot deny the noncustodial parent visitation because he is not paying child support. Likewise, the noncustodial parent cannot withhold child support because the custodial parent is denying him visitation.