Custody Help 

Interference by one parent in the relationship between a child and the other parent is never in the child's best interests. In fact, in several case the courts have said that a custodial parent's interference with the relationship between a child and a non-custodial parent has been said to be "an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent". In extreme cases, the actions by one parent and people aiding that parent to alienate the affections of the child from the other parent, or to interfere with the other parent's visitation rights, or to remove the child to a distant state or country have been sued in court for alienation of affection and parental alienation as well as infliction of emotional distress.

Young v. Young, 212 A.D.2d 114, 628 N.Y.S.2d 957 (1995), the parties' marriage produced four minor children and the mother was initially awarded custody at the parties' divorce. Subsequently, the father filed a motion for a change of custody. This motion was based, in part, upon "the mother's ongoing interference with visitation." 628 N.Y.S.2d at 959. In awarding a change of custody, the appellate division wrote:
Indeed, a custodial parent's interference with the relationship between a child and a non-custodial parent has been said to be "an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent[.]"
Id. at 958 (quoting Maloney v. Maloney, 208 A.D.2d 603, 617 N.Y.S.2d 190, 191 (1994)). Thus, the Appellate Division, Second Department, of New York has taken a strong stand against interference with visitation rights by the custodial parents. Such interference is so egregious, according to the court, that there is a "strong probability" that the offending party is not fit to act as the child's custodian.

Also see:
• Walden v. Walden, 112 A.D.2d 1035, 492 N.Y.S.2d 827 (1987)
  
• Berlin v. Berlin, 239 Md. 52, 210 A.2d 380 (1965)
  
• Ready v. Ready, 906 P.2d 382 (Wyo.1995)
• Nauman v. Nauman, 445 N.W.2d 38 (S.D.1989)
• Eatherton v. Eatherton, 725 S.W.2d 125, 128 (Mo. [Ct.] App.1987)
• Marriage of Birge, 34 Or.App. 581, 579 P.2d 297 (1978) I have more cites if you need them of if you would just like to read them. Most of the quoted cases are in the Download area and I am working to get all of them there and any new ones I find.

A non-custodial parent is not always left without a remedy, however, simply because courts in that parent's jurisdiction refuse to recognize tort actions arising out of interference with his or her parental rights. There is a different type of liability which may result from interference with the non-custodial parent's rights: Loss of Custody.

Most courts and experts agree that except in unusual cases it is most important for a child to have a strong relationship with both parents. Thus, courts will typically conclude that an award of custody to the parent who is most likely to foster a relationship between the child and the other parent is in the child's best interests. For this reason, if a custodial parent has demonstrated in the past a pattern of interference with the relationship between the child and the non-custodial parent, unless other facts dictate a different holding, courts will frequently conclude that a substantial change in circumstances justifying a change of custody has occurred.

While obstruction of the non-custodial parent's relationship with the child will often lead to a change in custody, such a change is not guaranteed. Utah Courts tend to recognize that the detriment to a child caused by occasional failures to turn a child over for visitation does not automatically require a change of custody.

In order to prevent a child's relationship with the non-custodial parent from deteriorating, certain provisions should be standard in every custody decree. First, every decree should require each person with a right to custody or visitation to foster the relationship between the child and other persons who have a right to custody or visitation. Second, every decree should state that persons who have custodial or visitation rights should not speak ill of another person who has custodial or visitation rights. Third, practitioners should consider placing restrictions on a custodial parent's right to relocate without informing the court or the non-custodial parent.

These three provisions will not guarantee that no problems with custody or visitation will occur. Rather, a custodial parent who desires to destroy the relationship of the child with the non-custodial parent will succeed unless stopped. If, however, the above provisions are inserted into the decree, a violation of a specific provision could lead to a contempt citation. While not a cure-all, the above three provisions may give the non-custodial parent the extra edge which he or she may need in a post-dissolution custody proceeding. Furthermore, since the provisions encourage a strong relationship between both parents and the child, such provisions are generally in the child's best interests.