January 17, 2014 by Robert Franklin, Esq.
For years advocates for family court reform have urged lawmakers to respect the rights of noncustodial parents the same as those of custodial parents, but to no avail. Indeed, the many ways in which the rights of noncustodial parents take a seat far in the back of the parenting bus is one of the many scandals that beset family courts throughout the English-speaking world.
As but one example, Australian historian John Hirst reported in his essay, “Kangaroo Court: Family Law in Australia,” that, among all courts in the country, only family courts refuse to enforce the orders they issue. Oh, they enforce most of them, alright. In fact they enforce all their orders via the usual methods, such as holding litigants in contempt of court – all, that is, except one. The one type of order family courts in the Land Down Under refuse to enforce by their power of contempt is the order of visitation or access. But “refuse” isn’t the correct term; the fact is that it’s the law that they not enforce those orders. Back in the 70s, judges ruled that visitation orders should not be subject to sanction by contempt. It’s been the law ever since.
Of course the non-enforcement of that particular type of order affects one type of litigant more than others. About 90% of noncustodial parents in Australia are fathers, so they are uniquely disadvantaged by courts’ refusal to enforce the orders that could benefit them.
It’s a bit different in the United States. Here, at least technically, non-custodial parents can get a court to hold a custodial parent in contempt if she refuses to abide by the court’s visitation order. But legions of fathers say that it takes moving heaven and earth to get a judge to actually do so. Even when the mother is plainly unfit or obviously about to flee the country, judges doggedly refuse to sanction them for violating their visitation orders.
But it can happen. The problems with a father’s getting his order enforced are many. In the first place, he’s generally got to hire a lawyer to do it. That means spending money he likely doesn’t have. If he doesn’t have a lawyer, he can try to file the motion on his own, but he almost certainly doesn’t know the nitty-gritty of giving his ex-wife notice of the motion, getting a hearing and, above all what he needs to prove and how he needs to prove it. And, even if he navigates through all that, and even if he wins, what’s the judge most likely to do? Tell the ex not to interfere with his visitation any more, that’s what.
That of course is an open invitation to do exactly that. After all, what does the ex-wife observe about what just happened? She sees clearly that there are no consequences to ignoring the visitation order, so she’s very likely to simply go about her business as usual. If she’s hauled into court three or four times, maybe the judge will wake up and do something, but, often as not, that’s what it takes.
Then there’s the time it takes to go through the process even once. Usually it takes several months at least. If a father is forced to file several different motions, get several different hearings and prove his case several different times, the chances are that a couple of years have passed without him seeing his kids, nor they him.
Most importantly, he’s got no access to help of any kind. He’s on his own. And that stands in stark contrast to custodial parents, 82% of whom are mothers, in child support cases. While Dad’s trying to figure out what he has to do to prove to the court that Mom received notice of his motion, Mom’s got the entire weight of the state attorney general’s office on her side. She’s got countless state-paid attorneys whose sole job is to enforce child support. Into the bargain, she’s got sanctions for failure to pay that would raise the hackles on Charles Dickens. Whether or not he can pay what he’s ordered to, Dad can lose his driver’s license, various professional or occupational licenses, get his passport suspended and ultimately go to jail if he falls behind.
And it’s all free to her. She needn’t lift a finger or pay a dime. All she needs to do is provide the proper information to the state and stand back and watch the wheels of “justice” grind into action.
Who pays all those lawyers? The federal government’s Office of Child Support Enforcement, mostly. It budgets a whopping $5 billion per year to pay states to establish and enforce child support orders. It budgets a mere $10 million to help fathers enforce visitation orders, but even that overstates fathers’ power in the system. By law, not one cent of that paltry $10 million can go to pay lawyers to represent Dads in their humble efforts to simply see their children.
Legalized inequality doesn’t get much more blatant than that, but it’s what fathers deal with every day in their thankless and usually unrewarded efforts to have a role in their children’s lives.
So now we have a state senator in Oklahoma who wants to do something about that inequality. Oklahoma Senate Bill 1612 won’t solve all the problems fathers encounter when trying to enforce their visitation orders, but, if passed, it’ll help. Here’s an article on the bill (Ardmoreite, 1/16/14). And here’s the bill itself.
A measure filed Wednesday in the Senate will help ensure that the visitation rights of law-abiding noncustodial parents are protected. Sen. Ron Sharp filed Senate Bill 1612 after visiting with attorneys and community leaders from around the state and learning about the growing problem of noncustodial parents being denied their visitation rights by bitter custodial parents.
“We have noncustodial parents who are paying their child support and doing everything else the court ordered them to do but the custodial parents are still not allowing them to see their children because of past animosities. Just as noncustodial parents can be punished for not paying their child support, we need to hold custodial parents responsible for honoring court ordered visitation,” said Sharp, R-Shawnee. “While these custodial parents may think they’re hurting the other parent, they’re really only hurting their children. This is wrong and has to be stopped.”
Sharp pointed out that nearly every District Attorney’s office in the state now has a division completely dedicated to securing child support payments from noncustodial parents. Those who do not pay their child support face imprisonment and fines. However, there has hardly been any effort to protect the visitation rights of noncustodial parents.
SB 1612 would require the custodial parent to provide the noncustodial parent, who is current on child support, the court ordered visitation schedule. Offenders would face a fine. The legislation would also create a form that noncustodial parents could fill out at their local courthouse informing the district court that their visitation rights have been denied by the custodial parent.
The bill is coauthored by House Assistant Majority Whip and family law attorney Rep. Jon Echols who has seen firsthand how many noncustodial parents are not able to see their children because they simply cannot afford the legal expenses to fight for their visitation rights.
“One of the major problems facing many noncustodial parents is that after paying all of their support obligations they cannot afford an attorney to secure their visitation rights when the custodial parent has violated the schedule,” said Echols, R-Oklahoma City. “This bill would allow the noncustodial parent to directly file a claim to the District Court, similar to completing a small claims form. The court would then decide whether or not an attorney is necessary to restore the visitation rights. We must protect children, and that includes being able to see both of their parents.”
Notice that, in order for a father to file a motion under this bill, he has to be paid up on child support. Funny how it doesn’t work the other way around. No law anywhere requires a custodial mother to show she’s allowed the father access to the child before she can ask a court to enforce child support. That fact reflects not only the pro-mother/anti-father bias of family courts and laws, but the pro-money/anti-father bias as well. As clear as the nose on your face is the law’s preference for child support payments over fathers’ being able to see their children once in a while.
That’s true despite the fact that the vast majority of custodial parents could support their kids without monthly child support payments. But if Dad can’t see his child, there truly is no substitute. A child has only one father.
Another important aspect to SB 1612 is its requirement that whoever loses the motion to enforce visitation pays the other party’s attorney’s fees and court costs. That, plus the bill’s requirement that Mom have behaved “unreasonably” will scare off a lot of fathers. But it’ll also make mothers think twice about denying access. If she loses, the judge must order her to pay Dad’s attorney, so there’ll be no more judges finding Mom’s contempt of court to be a violation without consequences.
We’ll see the fate of SB 1612 in the not too distant future. In the meantime, thanks to Senator Ron Sharp and the various district attorneys and family lawyers who support this bill.
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