Many people worry that once a child custody case is finalized, there's less incentive to remain on good behavior. The fear is that without a judge and/or Guardian ad Litem watching and the threat of a contempt of court finding looming over parents, it's easier to ignore parenting plan orders and visitation schedules and simply make up rules, potentially even denying visitation to a parent. We have seen these worries in our clients countless times over the years, so here are some of their frequently asked questions and our answers:

Is the custodial parent allowed to deny visitation to a non-custodial parent?

The short answer is absolutely not. If there is a court order granting visitation, the custodial parent cannot violate its terms without repercussions. If the custodial parent decides to withhold visitation in violation of the order, he or she faces the possibility of a contempt case where he or she will have to explain himself/herself to a judge and potentially face some harsh consequences, which will likely include make-up time being ordered for the parent who lost time with the child.

Are there any exceptions?

Sort of, but not really. There may be some “wiggle room” if the visitation order is unclear or not specific. For instance, if your visitation schedule says something like “Visitation will take place as the parties may agree,” it is possible that one parent can prevent access to the child on some occasions, claiming that there was no mutual agreement between the parties as to the time and place for visitation to occur. This is a good illustration of why it's so important to have specific and detailed parenting plans in order to avoid as many of these kinds of loopholes as possible.

Another example of an exception is when an order allows a custodial parent to deny visitation if they believe (for a good cause) that the visiting parent is under the influence of any intoxicating substance at the time of visitation or is in any other way not able to properly care for the child. If substance abuse or domestic violence has been an issue, some final orders will give the custodial parent the ability to determine when visitation is “safe” for the child and when it is not. If you have this kind of order, it is possible the custodial parent may not be punished for denying visitation if they can prove their decision was made in good faith and for a good reason.

What can a parent being denied visitation do?

If you are being prevented from spending time with your child due to interference or obstruction from the other parent, it is important that you act as soon as possible. You need to be sure to clearly document each and every time that a denial of access happens. It is important to create a paper trail, either by keeping your own records or, if the situation has truly progressed to such a point, obtaining a police report. The more clearly you can prove to the court that the other parent is abusing his or her position as the custodial parent, the more likely it is that the court will take action to prevent that parent from continuing to deny access to the child.

In order to file a contempt action against the other party to have a court review the situation, you should first meet with an experienced family court attorney. This attorney will be able to review your prior court order(s) along with the evidence you've gathered and then advise you as to whether a contempt action is the best option for your situation. They will also be able to point out any weaknesses your case may have, which may expose you to the possibility of paying the other party's legal fees if your case doesn't have merit.

Ben Stevens is a Fellow in the prestigious American Academy of Matrimonial Lawyers and the International Academy of Family Lawyers, and he is a Board-Certified Family Trial Advocate by the National Board of Trial Advocacy. He has represented parents in child custody and other Family Court cases all across South Carolina for over twenty-five years. If you or someone you know is facing a child custody or visitation case, contact our office at (864) 598-9172 or SCFamilyLaw.com to schedule a consultation.