Custodial interference can be defined simply as the taking/keeping of a child from his or her parent with the intent to interfere with that parent’s physical custody of the child. This is a crime in most states, even if the offending parent also has custody rights.
There are varying degrees of custodial interference:
- Parental kidnapping is just as it sounds. A parent willfully absconds with the children, oftentimes out of state and even out of country to prevent the relationship between the children and the target parent. This is typically the most serious type.
- Custodial interference may also involve the failure of the offending parent to return the children to the target parent for scheduled parenting time in a timely manner. It could be mere hours or even days.
- The offending parent may fail to make the children available for parenting time in a consistent manner in accordance with an agreement or court order.
- Restricting telephone contact is also an example of custodial interference, particularly when telephone contact is detailed by court order or agreement.
These offenses, the willful violation of a custody order or agreement are likely to met with traditional contempt-of-court remedies, but not in every case. Some traditional remedies would include:
- Fines and/or jail time for the offending parent.
- Reimbursement of attorney’s fees and other costs incurred by the target parent.
- Modification to the order/agreement that specifies child-exchange locations and times.
- Make-up parenting time for the targeted parent.
- Supervised parenting time for the offending parent.
- Family therapy.
In a high-conflict custody situation, don’t expect that any of these will immediately prevent a repeat occurrence or otherwise reduce the conflict in your situation. With exception to the first two in the list above, the balance of the example remedies are intended to preclude repeat occurrences and close exploitable loopholes in custody agreements. For major occurrences involving complete denial of visitation or phone contact, a parental kidnapping, or clear and convincing evidence of severe parental alienation – higher sanctions, up to and including a complete change in the custodial arrangement – are appropriate.
An important caveat! If you are paying child support, the withholding of child support on your own or on the advice of others is ill-advised. Most courts today operate under the belief that custody rights are treated independently from child support. You can and very likely will be in trouble for withholding child support no matter how justified you believe you are in doing so.
Reality is that these usual and customary remedies are very often inadequate. They don’t serve as a deterrent to the offending parent. While it may help the target parent obtain access to the children, it will not undo the damage to the child due to a combination of limited contact and parental alienation.
Making matters worse is the reality that many of the traditional remedies are rather difficult to enforce and require repeated return visits to court in order to seek more meaningful sanctions against the offending parent. This is time-consuming and costly.
Despite this, we will often recommend that when you are experiencing ongoing, repeated custodial interference issues, filing contempt-of-court petitions, often repeatedly (when appropriate), is the only way to establish an ongoing pattern of behavior by the offending parent. We point again to the language “when appropriate.” There are a variety of ways to define this, however, it’s important to understand that the court won’t want to hear about every “very minor” infraction. For instance, if telephone contact is withheld 1 or 2 or 3 times, you may not want to initiate litigation as a result. However, you will want to keep a journal that details dates, times, and number of attempts at phone contact. That interference of telephone contact in combination with 1 or 2 willful violations of parenting time might offer you the opportunity to prepare a contempt-of-court petition on 3 items which will have a deeper impact with the court.
There are many ways to approach situations centered around custodial interference and countless remedies for same. It is important to keep meticulous records with an appropriate level of detail. It is important to keep any evidence which would demonstrate the offending parent’s willful misconduct, such as emails or voice mails where they admit to doing so.
Finally, it’s very important to decide when it’s appropriate to initiate action and, once initiated, to follow-through completely. Don’t warn. Don’t threaten. Just act.