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Interference with Custody and Parenting Time

By: Art Penz

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It takes two people to create a child. Each should have an equal right to raise that child and to be part of his/her upbringing. Co-parenting is not always easy, convenient or comfortable, but the opportunity to parent is necessary for both parents.

Being a parent should be about caring for your children, making decisions about their upbringing, and watching them learn, grow and mature. All too often, those noble goals are set aside when, even good parents, argue about adult issues related to custody and parenting time. Too quickly language related to “our daughter or “our son” changes and becomes possessory - “my daughter” or “my son.” Often, even well intentioned discussions about the children are distorted and characterized as harassing. In many instances, parenting issues become a test of wills where children are used as weapons and controlled as if they were property. Not too occasionally, one parent may decide to try to restrict parenting time or unilaterally demand supervised visits based on parental conflict. This most often happens in the context of paternity cases where custody rights of the father have not yet been established. In the end, it leads to a potential explosive and expensive legal proceeding where, primarily, it is the children that lose.

Where children are placed in the middle of parenting disputes, Courts consider alienating and controlling parental conduct as a factor in any custody proceeding.

INITIAL CUSTODY DETERMINATIONS- ABILITY TO CO-PARENT

Minnesota Statutes allow courts to determine parenting time in any proceeding related to dissolution, legal separation or paternity. Under Minnesota Statutes 517.17, Minnesota Courts are charged with granting “such parenting time on behalf of the child and a parent as will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child.”

Only if a court find, after a hearing, that parenting time with a parent is likely to endanger the child's physical or emotional health or impair the child's emotional development, may the court restrict parenting time with that parent as to time, place, duration, or supervision and may deny parenting time entirely, as the circumstances warrant.

It is critical to note that child support and parenting time are separate and distinct issues. Minnesota Statutes 518.17 specifically states that “a parent's failure to pay support because of the parent's inability to do so shall not be sufficient cause for denial of parenting time.”
What is particularly noteworthy is that Minnesota Statutes provide a minimum presumptive base for parenting time. “In the absence of other evidence, there is a reputable presumption that a parent is entitled to receive at least 25 percent of the parenting time for the child.” Minnesota Statutes Sec. 518.17.

Courts may also consider as part of any custody and parenting time analysis whether one parent will support and foster a relationship between the child and other parent. In act Minnesota Statutes Sec. 518.17, subd. 5 states, in part, that a court may restrict parenting time if it finds that one parent has chronically and unreasonably failed to comply with court-ordered parenting time.

Courts make determinations related to custody and parenting based on what is in a child's best interests. As part of that decision making process, courts may consider any factors relevant to that determination. Minnesota Statutes enumerate 13 factors that may be specifically considered. However, that does not preclude a court from considering conduct by one parent that is designed to alienate the other parent from the child or that reflect a desire to interfere with the other parents access time or parental rights.

Often emails, letters, text messages and voice mail messages that unilateral seek to limit parental access can be used in court as documentation of one parents resistance to co-parenting.

Where joint custody is sought, Minnesota Statutes Sec. 518.17, sub. 2, adds additional factors which must be considered which specifically include:

(a) the ability of parents to cooperate in the rearing of their children;

(b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;

(c) whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and

(d) whether domestic abuse, as defined in section 518B.01, has occurred between the parents.

The court must use as a reputable presumption that joint legal custody is in the best interests of the child.
Once custody and parenting rights have been established, unilateral actions restricting parental access or alienating the other parent can result in both criminal and civil action.

CRIMINAL PROCEEDINGS- INTERFERENCE WITH PARENTAL RIGHTS

Criminal proceedings expose those charged with an offense to jail sentences, fines and probationary restrictions. One of the more significant offenses is found under Minnesota Statutes Sec. 609.26. Under the pertinent portions of that statute, a person may be charged with a felony who intentionally does any of the following:

(1) conceals a minor child from the child's parent where the action manifests an intent substantially to deprive that parent of parental rights or conceals a minor child from another person having the right to parenting time or custody where the action manifests an intent to substantially deprive that person of rights to parenting time or custody;

(2) takes, obtains, retains, or fails to return a minor child in violation of a court order which has transferred legal custody under chapter 260, 260B, or 260C to the commissioner of human services, a child-placing agency, or the local social services agency;

(3) takes, obtains, retains, or fails to return a minor child from or to the parent in violation of a court order, where the action manifests an intent substantially to deprive that parent of rights to parenting time or custody;

(4) takes, obtains, retains, or fails to return a minor child from or to a parent after commencement of an action relating to child parenting time or custody but prior to the issuance of an order determining custody or parenting time rights, where the action manifests an intent substantially to deprive that parent of parental rights;

(5) retains a child in this state with the knowledge that the child was removed from another state in violation of any of the above provisions;

The offense is punishable by imprisonment for not more than two years or to payment of a fine of not more than $4,000. The court may also, in addition to any sentence imposed, assess any expense incurred in returning the child against any person convicted.

CIVIL REMEDIES DEPRIVATION OF PARENTAL RIGHTS

Minnesota Statutes also state that a court may provide for one or more of the following remedies for denial of or interference with court-ordered parenting time:
1. If the court finds that a person has been deprived of court-ordered parenting time, the court shall order the parent who has interfered to allow compensatory parenting time to the other parent or the court shall make specific findings as to why a request for compensatory parenting time is denied. If compensatory parenting time is awarded, additional parenting time must be:
• at least of the same type and duration as the deprived parenting time and, at the discretion of the court, may be in excess of or of a different type than the deprived parenting time;
• taken within one year after the deprived parenting time; and
• at a time acceptable to the parent deprived of parenting time.
If the court finds that a party has wrongfully failed to comply with a parenting time order or a binding agreement, court may:
(1) impose a civil penalty of up to $500 on the party;
(2) require the party to post a bond with the court for a specified period of time to secure the party's compliance;
(3) award reasonable attorney's fees and costs;
(4) require the party who violated the parenting time order or binding agreement or decision of the parenting time expediter to reimburse the other party for costs incurred as a result of the violation of the order or agreement or decision; or
(5) award any other remedy that the court finds to be in the best interests of the children involved.
If the court finds that a party has been denied parenting time and has incurred expenses in connection with the denied parenting time, the court may require the party who denied parenting time to post a bond in favor of the other party in the amount of prepaid expenses associated with upcoming planned parenting time.

Proof of an unwarranted denial of or interference with duly established parenting time may constitute contempt of court and may be sufficient cause for reversal of custody.

Article Source: http://depositarticles.com/

The Author is a family law attorney who has been recognized as an outspoken advocate for children's rights. He has penned a number of articles on parental alienation and its effect on custody proceedings. He can be reached on his web site at www.divorceprofessionals.com or by calling 612.240.8005.

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