Visitation centers: a solution without critics.

• Author: Newton, Bonnie S.
• Position: Florida

Carl has twice complained to the court that he gets few, if any, visits with his four-and six-year-old daughters; his former wife, Marilyn, says that the children are often ill with ear infections, visiting their grandparents, or do not want to see Carl because they hate what he did by leaving them.

The relationship between Brian and Kris produced an 18-month-old boy, but it ended when Kris got a domestic violence injunction that removed Brian from their apartment because he had hit her, pulled the phone from the wall, and threatened to take the baby and disappear.

Errika is about to be paroled from her second prison term and she wants to visit with her 13-year-old son. All of her arrests have been for sale/possession of drugs or drunken and disorderly conduct.

Do Carl, Brian, and Errika have the right, or the realistic opportunity, to have a meaningful relationship with their children? How can the court grant or encourage parental contact and still be certain that no harm will come to the children? In a time of crowded court calendars, how can a judge sort out the truth on totally conflicting testimony about past events to determine whether allegations of child endangerment are genuine? Does an order for supervised visitation really mean that no visitation occurs because no one can or will supervise?

The Law

Even before the Shared Parental Responsibility Act(1) established our now-familiar concept of parents sharing the decisionmaking and extensive time with their children, and long before F.S. [sections] 61.13(2)(b)1 (1995) articulated the public policy "to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved . . . " the Supreme Court of Florida held that visitation could not be denied to a parent unless they had engaged in conduct around the child which adversely affected the morals or welfare of the child.(2) The need to make a finding that contact with the child would likely result in a detriment to the child was then expanded to require that the record must support a need for any restriction on visitation by an affirmative showing by competent, substantial evidence of detriment to the child.(3)

The legal principles apply to both legitimate and illegitimate children. The U.S. Supreme Court has held that a natural father, absent a finding that he is unfit, has a due process right to maintain a relationship with his children.(4)

Evidence of a parent's financial in ability to pay child support or the refusal to pay support are not grounds to interfere with visitation. Child support and visitation are separate from and unrelated to each other entirely.(5) Likewise a parent may not be deprived of the right to visit his or her child "merely because he has engaged in conduct which a trial court deems morally reprehensible or otherwise objectionable."(6)

If a parent has human immunodeficiency virus (AIDS), the court can, by statute, require the parent to agree to observe measures to prevent the spread of the disease to the child but cannot otherwise deny visitation.(7) Evidence of spousal or child abuse, however, shall be evidence of detriment to the child, and such a finding permits a court to make such arrangements for visitation as will best protect the child or abused spouse from further harm. If convicted of domestic violence as a second degree felony, or higher, a parent must rebut a presumption of detriment to the child or be deprived of visitation.

In addition, by law the residential parent "has an affirmative obligation to encourage and nurture the relationship between the children and the noncustodial parent." The case of Schutz v. Schutz, 522 So. 2d 874, 875 (Fla. 3d DCA 1988), has established the child's right to a "warm and loving affinity with both parents" and identified that parental alienation could become a basis to change custody. If the conduct of a residential parent prevents or interferes with the meaningful visitation of the other parent, especially with an intent to affect the child's relationship with the secondary residential parent, the primary residence of the child or children can be changed to the other parent.(8)

Very simply put, a parent's right to meaningful access to and time with the child is quite sacrosanct in the law; a court can rarely, if ever, set any limitations on visitation and must affirmatively encourage its exercise without any consideration of the prior actions of the parents unless a parent has directly hurt the child in a significant way.

The Problem

Trouble Picking Up or Returning the Children. Despite a clear and very broad legal right for a parent to have meaningful visitation, the practical problems that exist when parents are hateful toward or distrustful of one another have quite commonly led to visitation occurring in poor places or not at all. Seven-year-old Angela, for example, has been literally...