What is Custodial Interference?

What can you do if the other parent’s actions start to interfere with your access to your child? In some instances, this could be considered custodial interference.   

By WomansDivorce | Answers by Brette Sember, J.D. 

When parents of minor children divorce or separate, court-ordered custody arrangements are generally put in place. For example, a custody order and parenting plan will detail the legal rights and responsibilities each parent has over the care and upbringing of their child. Additionally, there is usually a visitation schedule outlining the times the child will spend with each parent.  

Both parents are legally obligated to comply with the court-ordered visitation schedule. Unfortunately, some parents refuse to abide by these orders. 

What is custodial interference?

Custodial interference occurs when one parent actively interferes with the other parent’s designated time with the child.

Many states also recognize unlawful interference, which is committed by a person who has no custodial right to the child at any time. For the purposes of this article, we will be discussing instances of parental interference.  

Common examples of custodial interference include

  • Denying court-ordered visitation with the other parent; 
  • Failing to drop off the child after a scheduled visit; 
  • Showing up during the other parent’s scheduled time with the child; 
  • Refusing to allow the child to speak with the other parent on the phone (as well as blocking the other parent’s calls); 
  • Disrupting other types of communication between the other parent and child, such as texts, emails, etc.; 
  • Preventing a parent from participating in the child's extracurricular or school activities; 
  • Taking the child without permission from the other parent; 
  • Moving out of the judicial district with the child while a custody action is pending;  
  • Intentionally persuading the minor child to leave the custodial parent; 
  • Kidnapping or taking the child for an extended period in violation of the custody order.  

Valid reasons for disrupting the parenting time schedule 

  • Previously agreed upon disruptions to the visitation schedule; 
  • Returning the child late due to a special event lasting longer than expected; 
  • Failing to return the child due to inclement weather or car problems; 
  • Removing the child to prevent reasonably perceived harm to the child;  

What to do about custodial interference

Depending on the laws in your state, violating custody or visitation orders can have varying consequences. For most cases of parental interference, you can file for enforcement of your custody order, and it will be handled by the family law courts. This may result in the judge changing custody, modifying visitation, or ordering the offending parent to pay for counseling for the child. More serious instances of interference, such as kidnapping, are considered a criminal offence and can result in criminal charges. 

If you are dealing with custodial interference, you should contact a family law attorney to find out the best way to proceed. It is important to continue to file a motion for contempt of court every time there is parental interference. If the interference is ongoing or poses a threat to the child’s best interests, modification of the custody and visitation order is warranted. 

Questions about Custodial Interference

Can I move in order to gain custody?

Lisa's Question: We have been separated for four months and my 2 girls currently live with my husband. I want them to live with me, but he says he will not give them up. I want to leave the state and take them so they aren't with him until custody is decided. Can I do this?

Brette's Answer: No. In fact, refusing to allow contact with the other parent is called custodial interference and is grounds for a change in custody. You need to show you're willing to support their relationship. If you want custody, you'll need to file for it and seek temporary custody.

What if he's in violation of the custody agreement?

Maliah's Question: Our shared physical custody agreement is that our son will live with me during the summer months and with my ex during the school months. Twice he has violated court orders by concealing my son, and this is still in continuance to this day. School has now been out for more than a month, and I haven't seen my son yet.

Brette's Answer: You should hire an attorney, return to court and file for a violation. Then you can seek a change in custody. Interference with custodial rights is grounds for a change in custody.

My ex didn't return the kids from visitation. What can I do?

Pam's Question: My ex has visitation on the week-ends. It has been 11 days since I've seen or heard from my kids, and he won't answer the phone or door. We are currently waiting for a ruling on full custody and child support. I'm afraid he will kidnap the kids because he knows he won't get custody. I called my lawyer and he said to file for contempt of court which I did. But I'm going crazy and no one seems to care.

Brette's Answer: I am concerned that your attorney does not seem to be taking this seriously. He should file an emergency motion with the court. If you have a temporary order of custody that specifically details who should have the kids when, you can contact the police if he is in direct violation of that order if you believe the children are in danger or have been kidnapped. I would suggest you have a serious conversation with your attorney and demand that he take action immediately or you will find another attorney and file a grievance against him with your state ethics committee. I hope this works out for you.

We share custody, but he won't let me see the kids unless he is there.

Katie's Question: My ex-husband and I have 50/50 joint custody, but my kid's primary residence is his home. He is mad at me because I won't get intimate with him, so now he won't let me see my kids unless he is there. Their grandmother watches them during the day. If I go pick them up at their grandmas, can he turn me in for kidnapping?

Brette's Answer: If he is interfering with your right to visitation, then you should file a violation in court. Doing this is called custodial interference and can be the grounds for a change in custody. If you pick them from his mother's house, he cannot say you kidnapped them if you are exercising your court ordered visitation rights. I think you need to go back to court to get this straightened out.

Is he allowed to just show up at my house when I have visitation?

Morgan's Question: I am the non-custodial parent and am recently engaged. Whenever I get visitation with my daughter, my ex always shows up unannounced at my house. Is he allowed to do that? I looked in the court order and there is nothing saying whether this is allowed or not. Also, can I get a restraining order against him if he is constantly harassing me with phone calls and texts even though we share custody?

Brette's Answer: Your visitation time is your time and he is not allowed to just come to your house. If he does, you do not have to let him in. And yes, if he is harassing, stalking, threatening you etc., you can seek a restraining order. 

Can I refuse visitation if he's threatened to kidnap the children?

Question: My ex threatened to take our two girls and run or hide them. I did not want to risk that so I have not allowed him to see them. He abused me for years up until we split up 2 years ago. We are now fighting for custody, but I cannot afford to get an attorney right now. Can the fact that we have a history of domestic violence help me?

Brette's Answer: The problem is that by denying him visitation you put yourself in a difficult position. Denial of visitation can be grounds for a change in custody. Obviously you have a very good reason for this though. You need to try to document the threat as best you can. Did anyone else hear him say this? His past domestic violence with you is an issue, but it doesn't necessarily make him an unfit parent. You really do need an attorney.

What can I do if he's restricting my access to the kids?

Freddie's Question: My ex has had custody for 6 months now. What should I do if he does not go by the court order at all, and won't let me see the kids on my weekends? He won't give me his phone number, and the number is blocked when he calls me. He doesn't want me to have any contact at all with my sons. I have witnesses to what has been going on.

Brette's Answer: Go to family court and file a petition for modification of custody. Refusing to let you see your sons is called custodial interference and it is grounds for a complete change in custody. Good luck.

Can he restrict visitation if it's not in the custody papers?

Jessica's Question: My friend's ex won't let her have the kids at her house without him or his mom supervising her. There is nothing in their custody orders saying that she has to be supervised at all. Can he stop her from picking up the kids?

Brette's Answer: If the order does not require supervision, he cannot stop her from having regular visitation. If he will not give her the children, she can file for a violation and enforcement with the court.

What are the legal ramifications if he's denied me visitation for 7 years?

Jo's Question: My ex and I have split custody of our children, but he has denied me access to my son for 7 years. He is now 12 years old and I have attempted to have contact with him, but his dad refuses. He has told our son that his current wife is his mother and there is no trace in his life of me ever existing. I just want to see my son. I have filed a motion to reverse the conservatorship and a motion for temporary orders, but what are the legal ramifications for such behavior out of the other parent and is it likely that my son will be returned to me?

Brette's Answer: Custodial interference is grounds for a change in custody. It sounds like you're in a good position to get a change.

What if my son is brainwashed by his dad and doesn’t want to visit?

Question: After having joint custody for almost 10 years, my ex was granted sole physical custody (long story) of our son, and I'm supposed to have visitation. My son is almost 15 and has been and continues to be brainwashed by his father for the past few years. He hasn't spoken to me in almost a year. I've called, texted, sent letters, sent cards, and still get no response from either of them. What else can I do?

Brette's Answer: Parental alienation is a hard thing and I am sorry to hear you are dealing with it. It is not uncommon for teenagers to side with one parent after a divorce. Do not give up hope. If your ex is not facilitating visitation, he is in violation of the order and you can go back to court to force him to comply. He is required to make your son available and arrange it. However, with a teen of that age, it is very difficult to force them to go if they do not want to, but your ex should be complying with the order. I highly recommend getting an attorney who has experience in these types of cases. You could have your attorney ask the court to order that your son go to counseling with you to try to repair your relationship. Remain as a presence in your son’s life. Continue to reach out and make efforts even if you know they will be rejected. Going to therapy alone can help you cope with it.

How can I regain custody if he's brainwashed our daughter?

Ginger's Question: Our daughter (who is 10) decided she wanted to live with father 2 years ago since I'm poor (unemployed for almost 2 years). Our 13 year old son lives with me. As a result, he cut the support payment in half. All of this was done without the courts. I just got papers that he wants custody of daughter. He also claims he only makes $16,000/year, is filing bankruptcy, and his house is going into foreclosure. I know how he operates and he's lying. He's also brainwashed our daughter into hating me and doesn't allow her to call or visit me at all. What can I do to arm myself? I can't afford a private lawyer.

Brette's Answer: Refusing to allow contact with a child is custodial interference and can justify a change in custody, so that is your leverage there. You will need to prove he's hiding money. The court can send subpoenas for you if you represent yourself. You need financial records and testimony from people who have knowledge of what he's doing.

What can I do if he's accusing me of alienating the children?

Julie's Question: My children's biological father has alienated himself from my kids (he has not seen them in over three years) and is attempting to shift the blame onto me by falsely accusing me of what sounds like PAS. Do you have any ideas on how to handle this?

Brette's Answer: If have kept a journal or diary that would support your case. Witnesses who can testify about what you told them about your intentions or who saw you trying to make arrangements with him would be helpful. If your kids are old enough they can talk to the judge about what they know about the situation as well. You could subpoena phone records to show he's never called, print out emails where you've have attempted to contact him or which he has sent you.

What if he does not allow phone calls while our son is with him?

Shanda's Question: We have joint custody of our 7 year old son. My ex lives in a different state and his new wife will not allow me to talk to my son on the phone. If this is going on, can I get full custody back of my son? She gets involved and I don't know what to do.

Brette's Answer: You should be keeping a log of the phone calls which are denied. If your ex and his wife are interfering with your custodial rights to stay in contact with your child it could be grounds for a change in custody. Good luck.

What if he won't allow our daughter to contact me?

Sylvia's Question: I am the custodial parent of our 9 year old daughter and she has just started her 30 day summer visitation. I got her a cell phone in an effort to be able to have contact with her during visitation. Last night she sent me a text saying her father will not let her call me. After reviewing my court ordered custody agreement, there is no wording about contact, other than neither of us is allowed to deny access. What should my next step be? I do not want to ask her to go against her father, but she should also not feel like she cannot contact me.

Brette's Answer: You can try to talk to your ex. You don't want to say you've had contact with her, but say you're concerned because you're trying to reach her and can't. Try to arrange for reasonable phone contact. If he won't agree, you have to go back to court. Your order needs to be clearer about what "contact" means. Good luck.

Do I have a right to contact my son if he has custody?

Wendy's Question: Can my ex-husband keep my son from talking to me and seeing me if he has custody? There is no visitation set by the courts. He has blocked all phone numbers and I can't even call him to check on my son. Is he allowed to keep all contact from me?

Brette's Answer: If your order does not give you any visitation or specifically states you can have phone contact, then you don't have that right. You can file to modify the order, asking for the right to contact.

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