Can a Parent Refuse Visitation Without a Court Order?

Reviewed by Mark P. McAuliffe

It’s important to understand that, in New Jersey, refusing to comply with court-ordered child visitation or parenting time can result in serious legal penalties for the non-cooperative parent. Penalties can include contempt of court, fines, and even custody modifications. As such, if a parent wants to change the custody arrangement, they must do so by filing a modification request through the New Jersey family court. However, simply filing the request is not enough, as the petitioning parent must show that a substantial change in circumstances has occurred that warrants the modification. The following blog explores your rights in further detail. Under the New Jersey Rules of Court, Rule 5:3-7, judges have broad authority to remedy violations of parenting time.

As a parent, can I refuse to send my child to visitation without a court order?

While you may have full physical and legal custody over your child, your former spouse may still have some level of visitation rights with your child. You may be hesitant to send your child to these scheduled visitation times, as you may not believe that such visits are in their best interest. However, this may not be for you to decide; rather, it may be the decision of the New Jersey family court. Filing an application for a modification does not suspend your obligation to follow the existing order while awaiting your court date.

The New Jersey family court may hold onto the belief that it is in the best interest of your child to maintain a relationship with you and their other parent alike. This is why, at the very least, the court may grant your former spouse visitation rights. With a court-ordered visitation schedule, your former spouse may be allowed to frequently visit and contact your child.

It’s necessary to understand that the court is governed in accordance with N.J.S.A. 9:2-4, which is the statutory guidance to determine the best interests of the child during family law matters.

While the court often attempts to grant joint custody when possible, if it is in the best interest of the child, the judge may award sole custody to one parent, while granting the other visitation rights.

You must understand that you cannot take it upon yourself to stop taking your child to their scheduled visits. This applies even if you believe that your reasoning is in the best interest of your child. If you do so, then you may be found in contempt of a court-mandated order. With this, you may risk losing your full physical and legal custody rights over your child. What’s worse, you may be barred from any type of custody rights over your child altogether.

Strategic Factors New Jersey Family Courts Weigh for Custody and Visitation

When the court examines a child custody case, in order to determine the best interests of the child, the court will examine a number of factors, including:

• Allegations or convictions for domestic violence
• Drug or alcohol abuse
• The overall parental fitness of the parties
• The needs of the child
• The child’s preference, if they are deemed old and mature enough
• The geographic location of the parents’ homes
• The work schedules and responsibilities of each parent
• Current parent-child relationships

How can I officially submit a court order to terminate visitation rights?

Rest assured, you may legally stop sending your child to visitation after officially petitioning for a post-judgment modification with the New Jersey family court. In your petition, you must prove that extenuating circumstances have arisen that make it generally unsafe for your child to attend their court-ordered visitation sessions. More specific examples of relevant extenuating circumstances are as follows:

• Your child’s other parent has been proven to have a substance abuse issue.
• Your child’s other parent has been proven to have a history of domestic violence.
• Your child’s other parent has been proven to have a history of neglecting or abandoning your child.
• Your child’s other parent has been proven to have a mental incapacity to properly care for your child.
• If a parent is proven to be violent, whether it be physically, verbally, emotionally, or sexually abusing their child.
• If a parent is proven to have a history of abducting or kidnapping their child.
• If a parent is proven to have a history of being incarcerated.

It is worth mentioning that if you cannot wait for your formal petition to be processed through the legal system because your child is in imminent danger, then you may file your family case as an emergent matter. It is understandable to withhold visitation when you have a reasonable belief that your child would be in immediate danger if left in the care of the other parent. However, before withholding visitation, you should first contact law enforcement, your attorney, and child protective services. Emergent relief applications are filed as an Order to Show Cause pursuant to New Jersey Court Rule 4:52, requiring proof of immediate and irreparable harm.

All in all, to effectively fight for the termination of visitation rights, you must turn to a skilled Bergen County family law attorney. So please get in touch with us at McNerney & McAuliffe as soon as you get a free chance.

What are examples of a parent refusing to comply with a visitation order?

It’s important to understand that noncompliance with a custody or visitation schedule is not exclusive to the custodial parent, as the non-custodial parent may also attempt to interfere or violate the agreement. As such, understanding the most common forms of non-compliance is critical.

Specific Violations by Custodial and Noncustodial Parents

• Failures by the custodial parent include:
  • Scheduling appointments, activities, or other events during the noncustodial parent’s visitation time
  • Alienating the parent by making their child fear or resent the non-custodial parent, ultimately making them unwilling to attend scheduled visitations
  • Relocating out of state with the child without court approval or the consent of the non-custodial parent
• Failures by the non-custodial parent include:
  • Failing to return the child to the agreed-upon location at the agreed-upon time
  • Preventing the child from communicating with the custodial parent during visitation
  • Failing to find an approved adult to supervise visitations, as ordered by the court
• Both parents may try to change the schedules on short notice, or fail to appear at all when they are required to do so

What mechanisms does the court use to enforce a visitation order?

When a parent repeatedly fails to comply with the visitation or custody order imposed by the court, the other parent may file a petition to hold the non-compliant parent in contempt of court. If this occurs, courts in New Jersey, including those in Bergen County, can take a number of legal actions to remedy the situation, including:

Judicial Actions and Enforcement Steps

• The court may award the compliant parent with additional time with the child as compensation.
• The court may modify the current arrangement to grant the compliant parent additional rights.
• The court may order the non-compliant parent to pay fines and fees, or even potentially sentence them to time spent behind bars if they threaten the well-being of the child.
• The court may order the parents to attend mediation to resolve visitation issues before taking more serious measures.
• If you are sympathetic to this, you may propose mediation. With mediation, you and your ex may negotiate a modified parenting time schedule that works in both your best interests, alongside that of your child.It’s important to understand, however, that any proposed parenting plan must be approved by the New Jersey Superior Court before it takes effect
• If they refuse to follow your parenting time schedule or at least fix it through mediation, you must file a motion for contempt of court. With this motion, you must prove that your ex has repeatedly failed to drop off your child on time. This may be demonstrated through videos of you at the drop-off location at the scheduled time, written communications between you two, and more.
• If a judge finds a parent has violated court orders by failing to adhere to the custody or visitation schedule, they may impose sanctions. This can include granting the compliant parent additional “make-up” time with the child, or ordering the non-compliant parent to pay the legal fees of the other party.
  • Economic penalties in accordance with New Jersey law can include asset seizure and the suspension of the non-compliant parent’s driver’s license for repeated violations

Will I have to pay child support even if I do not have visitation rights?

It’s also important to understand that a parent without custody or visitation rights is still legally required to contribute financially to the child. Custody is not a condition of child support, as the law believes all parents, regardless of whether or not they are allowed to be in the child’s life, are financially responsible for supporting the child. Failure to pay child support as required by the court can result in court-imposed penalties.

Interdependence of Support and Visitation Rights

• In the event that you fail to make your regular child support payments, you will face a series of very severe consequences that will be enforced by New Jersey courts.
• Courts in New Jersey will consider a number of factors when determining how much child support should be awarded, including whether or not one spouse was financially dependent on the other
• In the event you are the spouse with a higher income, you will likely owe child support. Additionally, the less income your former spouse earns, the higher your payments will be.
• Courts in New Jersey will also consider whether or not your child has special needs, if the child plans on attending a college or university after high school, and any other factors deemed relevant to their best interests
• Child support ends when a child reaches the age of emancipation, which in New Jersey is 19, though it can be extended to the child’s 23rd birthday if they are enrolled in college.
  • If support is extended, the order will end when the child graduates from college or turns 23, whichever occurs first
  • However, child support may also end early if the child gets married, is enrolled in the military, or becomes financially independent
• New Jersey child support enforcement is governed directly under the statutory authority of N.J.S.A. 2A:17-56.

CONTACT OUR EXPERIENCED NEW JERSEY FIRM

Here at McNerney & McAuliffe, we understand how confusing certain legal matters can be, which is why we are here to provide clients from all walks of life with the experienced, compassionate legal guidance they need. If you require the legal assistance of an attorney to help you through a criminal law matter, personal injury matter, family law matter, or otherwise, you can turn to us. Contact McNerney & McAuliffe today to learn more about what we can do for you. Our firm is committed to fighting for the best interests of you and your child. As such, if you were unfairly denied visitation, contact an experienced attorney today to learn how we can protect your parental rights.