American Indian/Alaska Native victims of sexual violence may have concerns about child visitation issues, especially if the other biological parent has committed acts of domestic or sexual violence. Visitation exchange can be a time fraught with danger for victims and should be discussed thoroughly with a victim advocate and included in any safety plan.
Visitation is normally addressed by the court during child custody proceedings. Temporary visitation orders can also be issued as part of a Protection Order proceeding. Absent a court order assigning custody and visitation, both biological parents typically have equal rights to parenting time with the children as well as equal rights to make legal decisions. This means that, without any court orders in place, a biological father who has committed spousal rape may have equal rights to decide where the children will live, where they will go to school, which church they will attend, and what medical services they will receive.
Child support is a related, but different legal proceeding. It is legally possible for a parent to be court ordered to pay child support, but receive no visitation time with the child. Convictions for sexual or domestic violence, credible allegations of abuse, a parent posing a danger to self or others, unsafe living conditions, and other dangerous situations can influence a judge to withhold visitation with a child or to order third party supervision of visitation.
It is important for each parent or guardian to strictly comply with the details of a child visitation order. Failure to comply with a valid visitation order can result in a parent being criminally charged with custodial interference or kidnapping. Custodial interference (also commonly referred to as custody interference) occurs when a the guardian (usually the child’s parent) that has primary custody over the child refuses to turn over a child to the child’s other guardian for a court-ordered visitation. Also, custodial interference can occur when a guardian that does not have primary custody over a child refuses to return the child from a court ordered visitation. Custodial interference can occur over the course of hours, days, weeks, months, or years.
Example: Marvin and Shirley live on Tulalip tribal lands, the couple has a visitation order, issued by Tulalip tribal court, stating that Marvin is allowed to keep the couple’s children for 48 hours every other weekend. On a whim, Marvin decides that he wants to take the children to Disneyland in Anaheim, California for a week. He gets in the car, drives the children to Anaheim, and keeps them in California for an entire week. In this situation, Marvin has committed custodial interference.
Because the federal laws governing kidnapping do not extend to cases where a child’s parents violate a child visitation order, custodial interference cases are governed almost exclusively by state or tribal laws. Most jurisdictions consider custodial interference to be a misdemeanor, meaning it can be punished by less than a year imprisonment. However, if the offending parent travels interstate or internationally with the child, most jurisdictions would classify this custodial interference as a felony, meaning that the parent can be sentenced to more than a year imprisonment. (But, also note that the Tribal Law and Order Act stipulates that tribal courts can sentence offenders to a maximum of one year per crime).
Most jurisdictions allow for the offending parent or guardian to invoke affirmative defenses to the crime of custodial interference. The most prevalent statutory affirmative defense to custodial interference is danger to the child. Under this defense, the parent removing the child claims to have interfered with normal custody rules because he or she fears for the child’s safety. Also, the offending guardian can successfully claim that he or she violated the custody order with the mutual consent of the child’s other guardian.
If custodial interference is committed during the course of visitation, the non-offending guardian should notify law enforcement immediately. The non-offending guardian should also notify the attorney representing her in civil court, because custodial interference is not just a violation of criminal laws, but also constitutes a violation of a civil court order. As such, the offending parent can face ramifications in civil court as well. If a child’s guardian commits custodial interference, a civil court can hold the guardian in civil or criminal contempt (only if the court has criminal jurisdiction over the offender); order the offending parent to pay the non-offending parent’s attorneys’ fees associated with the episode; order the offending parent attend family counseling; require that the missed time be made up at the offending parent’s expense; or modify the visitation order, to the detriment of the offending parent.
In addition to custodial interference, many jurisdictions also consider access interference to be a crime. Access interference occurs when one guardian prevents a child from contacting his or her other guardian. For example, when the couple’s child is visiting Marvin’s house, Marvin prevents the child from calling, texting, e-mailing, or writing to Shirley. This is considered access interference. In the jurisdictions that criminalize access interference, this crime is generally classified as a misdemeanor. Just like custodial interference, access interference can be punished by a host of civil remedies as well.
A parent cannot be forced to use his visitation time with his child. A motion to modify custody and visitation can be filed if the other parent consistently misses or cancels scheduled, court approved visitation. Similarly, if the other parent consistently returns the child late (or early), a motion can be filed to modify the visitation schedule to more accurately reflect the change in circumstances.
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*National Tribal Trial College is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.