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 abuse. Visitation exchange can be a time fraught with danger for victims and should be discussed thoroughly with a victim advocate and included in safety planning.
The court addresses visitation typically during child custody proceedings. The court can also issue a temporary visitation order as part of a Protection Order proceeding.
Both biological parents usually have equal rights to parenting time with the children as well as equal rights to make legal decisions unless a court orders custody and visitation. For example, without any court orders in place, a biological father who has committed spousal rape legally has equal rights to decide where the children live or 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 themselves 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.
Each parent or guardian must comply with the details of a child visitation order. Failure to comply with a valid visitation order can result in criminal charges against the parent. Those criminal charges may include custodial interference or kidnapping.
Custodial interference occurs when the guardian or parent with primary custody refuses to turn over a child to the child’s other guardian or parent for court-ordered visitation. Custodial interference can also occur when a guardian that does not have primary custody over the child refuses to return the child from a court-ordered visitation. Custodial interference can occur over hours, days, weeks, months, or years.
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 is subject to a sentence of more than a year imprisonment. (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 common statutory affirmative defense to custodial interference is danger to the child. Under this defense, the parent removing the child claims to have interfered with standard custody rules because he or she fears for the child’s safety. Also, the offending guardian can successfully argue 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 inform 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.
The offending parent can face ramifications in civil court, as well. The consequences of violating a custody order may include:
Modifying 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 their dad, Marvin, and Marvin does not allow the child to call, text, e-mail, or write to Shirley. Preventing the child from talking to their other parent is considered access interference. In the jurisdictions that criminalize access interference, this crime classifies as a misdemeanor. Just like custodial interference, access interference can be subject to civil ramifications.
A parent cannot be forced to use their visitation time with their child. The other parent can file a motion to modify custody and visitation if the other parent consistently misses or cancels scheduled court-approved visitation. Similarly, if the other parent always returns the child late (or early), a motion can be filed to modify the visitation schedule to reflect the change in circumstances accurately.
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*NICCSA 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.