By Hope Tuber
A common question I have been asked over the years is whether a spouse can deny visitation to the other spouse. New York Courts have taken the view that visitation with a parent is in a child’s best interest and that children will greatly benefit from being nurtured and guided by both parents. In general, the non-custodial parent has the right to meaningful and reasonable access to their child. What does that entail? In the case where the parents reside near each other, it usually means visitation is in some form of weekly access and part of summer recess. It also will include holidays and school breaks.
Despite the above, a parent can be denied visitation under certain extreme circumstances. However, before a court will deny a parent visitation, the parent seeking to deny visitation has the burden of demonstrating that it will be harmful to the child’s welfare. The court again will be guided by what is in the best interests of the child, not what is in the best interests of the parents. Consequently, a fight between parents which spills over into visitation will not be entertained by the court. A parent must also obtain prior court approval before denying visitation—unless of court the child is in imminent danger.
So when will a court deny visitation? Visitation may be denied if a parent’s behavior raises legitimate concerns with regard to the safety of the child. For example, courts may deny visitation if there is strong evidence of child neglect, abuse or mental illness of a parent which will also place the welfare and safety of a child in jeopardy. However, before a court takes the harsh remedy of severing visitation rights, it will look to see if there is a less drastic alternative. For instance, a court may look to supervised visits. Supervised visits may be enough to alleviate any concerns by the custodial parent and the court.
If you have been denied visitation or there are significant changes in circumstances, your original divorce decree is not necessarily the final word. Depending on the circumstances, you can always petition the court to modify visitation, or in some cases, enforce your visitation rights. Courts will look at the change in circumstances, or in the event of an enforcement proceeding, the reasons why a visitation was withheld and make a ruling— again, based on what is in the best interests of your child.