A COMPELLING NEED FOR MANDATED USE OF SUPERVISED VISITATION PROGRAMS

• Date: 01 April 1998
• Published date: 01 April 1998
• Author: Debra A. Clement
• DOI: http://doi.org/10.1111/j.174-1617.1998.tb00510.x

A COMPELLING NEED FOR MANDATED

USE

OF

SUPERVISED VISITATION

PROGRAMS

Debra

A.

Clement

Courts arefrequenily confronted by circumsiances ihat do noi justify termination

of

all coniaci

with aparent, yeipresent legitimate concerns regarding

ihe

physicaL emotional,

or

mental healih

of

ihe

child. Supervised visiiation program

Moni

such parents

and

their children ihe opportu-

nity

to preserve

ihe

emotionally vital parent-child relationship while proieciing

he

child,

and

sometimes

the

other pareni,

from

harm

As

the

number

of

children deemed

io

be at

risk

continues

to rise, demand

for

supervised visiiaiion services sieadily exceeds supply. This am‘cle proposes

ihai

all states should

make

supervised visiiation programs universally available

by

enacting

legislation ihat provides

for

iheir creation, regulation, andfinding, together with clearly dejined

guidelines that mandate participation in supervised visitation programs whenever spec#c

risk

factors are present.

During a bitter custody and visitation dispute that spanned more than

seven years, Lynn Mison fought for supervised visitation for her children

because she feared ex-spouse Avi Kostner’s mental instability.’ New Jersey

courts frequently order supervised visitation in cases involving psychiatric

disorders where the safety and health of the child may be jeopardized.’

However, the Bergen County Family Court denied Mrs. Mison’s request

for a reinstatement of supervised visitation? despite Mr. Kostner’s well-

documented history of mental illness: evidence that he severely beat his son

during a weekend visit? psychiatric testimony that his behavior was vindic-

tive: and a recent

arrest

for interference with custody and disobeying a court

order.’ The Bergen County Family Court based

its

decision

on

a

belief that

supervised visitation would be detrimental to Kostner because he was suffer-

ing from depression.’ For 12-year-old Geri Beth and 10-year-old Ryan, the

court’s improvident discretion arguably cost them their lives. Just days before

his children were

to

relocate to Florida with their mother and stepfather? Avi

Kostner, who was receiving Social Security disability benefits for mental

illness,” murdered his children during a court-ordered unsupervised visit.”

Although disputes that end

as

tragically

as

the Koshers’ are fortunately

rare, protracted custody and access litigation based on allegations

of

child

endangerment

are

not. Increasing numbers of contested custody suits involve

allegations of sexual abuse” and domestic vi01ence.l~

FAMILY AND

CONCILIATION

COURTS

REVIEW,

Vol.

36

No.

2,

April

1998

294-316

0

1998

Sage

Publications,

Inc.

294

Clement

/

MANDATED

USE

OF

SUPERVISED VISITATION

PROGRAMS

295

Every jurisdiction recognizes there

are

circumstances that warrant re-

stricted visitation. Restricted visitation may be ordered

as

part of a final

disposition, or it may be ordered during a preliminary hearing, particularly

when allegations of child abuse or domestic violence are alleged, to assess a

family’s functioning and provide the court and counsel with valuable infor-

mation.I4 Existing case law demonstrates that courts commonly impose

restricted visitation in situations concerning child sexual or physical abuse,

neglect, domestic violence, psychiatric illness, alcohol or

drug

addictions,

persistent violation or interference with custody or visitation orders, and

threats or past acts

of

abduction.”

Many states rely on judicially created standards for determining when

parental visitation should

be

restricted.16

In

some states, judicial standards

augment existing broad custody statutes; in others, the standards

are

based

purely on

case

law.” Many states rely on statutory visitation models that

range from the broad “best interests” standard, which gives the court com-

plete discretion when determining visitation rights, to narrow standards that

require specific judicial findings before a court may limit visitation rights.’*

In an effort to prevent courts from denying visitation to a noncustodial

parent based on its own

“

‘irrelevant moral judgments’

”

concerning proper

parental behavior, several states have enacted legislation to curtail judicial

discretion.‘’ Some states follow the Uniform Marriage and Divorce Act and

articulate specific factors that

the

court must consider in visitation determi-

nations?’ Other states impose a burden on the party seeking to restrict

visitation to show it is against the child’s best interestz1 and, conversely, some

states place the burden

on

the visiting parent to prove he or she is entitled

to

visitation?2 Finally, the majority of states require courts to consider the

presence of domestic violence when making visitation determinations.=

However, even when courts are mandated to consider particular circum-

stances in making a visitation determination, in the majority of jurisdictions,

whether these circumstances rise to a level warranting restriction still remains

a matter of judicial opinion. Only Delaware, Louisiana, Maryland, and

Washington have enacted laws that mandate restricted visitation when spe-

cific circumstances showing family violence

are

presented to the

similar legislation in South Carolina is pending appr0val.2~

This article proposes that

state

legislatures enact laws mandating partici-

pation in a supervised visitation program whenever the court is confronted

with specific circumstances that pose

a

risk

to the health and safety of child

or adult victims of violence. Furthermore, in response to the already exigent