Visitation and Custody Interference Issues: Valid Grounds for a Change in the Original Child Custody Decision

On the issue of child custody in a divorce proceeding, one of the most important questions is, “Who will have custody of the child?” After naming the custodial parent, the other parent will necessarily be given visitation rights, unless there is evidence that will show and prove that he/she is an unfit parent.

Legal experts agree that it is very important that a child has a strong relationship with both parents. Thus, courts typically award custodial rights to that parent who would very likely be able to cultivate such relationship between the child and the non-custodial parent. There are other relevant factors that courts consider when deciding on the matter of custody but, regardless of what these are, these should be in line with the most important factor: the best interest of the child.

There are times, however, when the chosen custodial parent (or sometimes the parent given visitation rights) is not able to live up to the court’s expectations, failing in his/her obligations to fully recognize and respect the other parent’s rights and personhood. The specific details through which failures are committed are numerous and varied. Generally speaking, all these are considered as visitation and custody interference issues and all call for the same thing: a modification in the original decision pronounced by the court. These interference issues include:

  • Frustration of the non-custodial parent’s visitation rights. These are instances wherein a custodial parent, for whatever reasons, eventually resorts to means that will alienate the child/children from the other parent. The most common of these means is denial of visitation rights.
  • Estrangement of the child’s affections for the non-custodial parent. A child’s relationship with his/her non-custodial parent can be severed through false accusations and/or damaging comments by the custodial parent. Unknown to the custodial parent, however, is that this/her ill-talks about his/her former partner also negatively affect the child’s emotional and mental health.
  • Parental Alienation Syndrome (PAS). PAS occurs when the custodial parent consciously and systematically brainwashes the children, resulting to the children eventually disfavoring the other parent. Since most family courts consider as vital the existence of a strong relationship between a child and his/her parents, courts, therefore, believe that the ill behavior displayed by a custodial parent warrants a change in custody.
  • Change of Residence. Despite the stipulation (in the divorce decree) that a custodial parent will have to inform the non-custodial parent of any plans of him/her and the children moving to another city or state, many custodial parents ignore this requirement and relocate to a distant location secretly. This stipulation is inserted in the divorce decree to give the noncustodial parent the chance to argue against such plans. As this move can affect a child’s relationship with the other parent, many courts believe that it establishes a significant change in circumstances which justifies a change in custody.

Other reasons that may warrant a change in custody include:

  • Material and Substantial Changes. These include a custodial parent’s remarriage, inability to provide the required care due to a medical condition, commission of a crime, and criminal conviction.
  • Child’s Preference. Children, who have reached the age of 12, are usually interviewed by a judge in his/her chamber or private office. A change in custody (as well as in visitation rights) may be made if a child asks for it, but on the condition that the court is convinced that such change will be in his/her best interest.
  • Relinquishment of Custody. There are instances when a change in a court’s original decision on custody may be made. One instance is if a custodial parent voluntarily gives up care and custody of the child. The change, however, will only be ruled as temporary if the reason of the custodial parent is due to military deployment or duty.
  • Unfavorable Environment. If the environment where a custodial parent lives can endanger his/her child’s physical health or significantly harm the child’s emotional growth, then the other parent can request the court to alter its original decision.

In their website, Raleigh child custody lawyers attest how reaching a child custody agreement that both spouses will agree on can be very difficult. Because of the importance a child custody agreement has on both the lives of the children and the parents, this is frequently the most contentious issue that arises during a divorce proceeding. However, determining what type of custody you and your soon-to-be ex-spouse (whether Sole Custody, Joint Custody or Primary/Secondary Physical Custody) will have is critical to successfully completing the divorce process. Due to this, it is best that you and your children find a supportive and knowledgeable lawyer who will help you get the outcome which you believe is suitable for your family.


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