Withholding of a child from visitation from their other parent can be a serious factor for the court to consider in any custody or visitation case. In some situations, the court will intervene by either changing custody completely, or by ordering re-unification therapy for the child and the other parent. You have different remedies available depending on the procedural status of your case and relationship with the other parent.
If you and your spouse have initiated a divorce case in the Circuit Court, you can request a temporary hearing on custody and visitation, known as a pendente litehearing. Any orders made at this stage are meant to be temporary, and can be modified in the future if there are any material changes in circumstances. Ordinarily, a pendente liteorder will remain in effect until the parties go to trial and get a final determination. However, if one party refuses to comply with the pendente liteorder and withholds the child from the other parent, the court may modify its temporary order.
Decisions made during a pendente litehearing follow the same standard for custody and visitation as a full trial. The court will consider the factors of Virginia Code Section 20-124.3 in making its determination. One of the most important factors for many courts is found at subsection (6) and states the court will consider: “[t]he propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.” While this is only one of the factors listed, many judges weight it more heavily than other considerations such as the role each parent has played in the child’s upbringing.
For parties that are not married, they can file for temporary custody and visitation with the Juvenile and Domestic Relations District Court. Once a custody and visitation petition has been filed, either party may request a temporary hearing while the case is pending. Again, any order made is usually in effect until the final trial. The court will follow the same standards of Virginia Code Section 20-124.3 in making a temporary determination.
Once there is a final order in the Juvenile and Domestic Relations Court, the parties each have the option to note an appeal to the Circuit Court within 10 days. In the appeal, the court will hold a new trial and follow the same standard.
Once you have a final decision from either the Juvenile or Circuit Court, you have the ability to enforce it against the other parent through the court as well as through law enforcement. If the other parent refuses to let you have your scheduled visitation, you can file a petition for a Show Cause, requesting the court hold the other parent in contempt for not complying with the order. In a Show Cause, the court can award sanctions, jail time, and attorney’s fees against a noncompliant party.
Once you have a court order you also have the option to request law enforcement assistance if the other parent refuses to turn over the child for your scheduled visitation. Law enforcement is able to take action based on valid court orders only and cannot intervene if there is no order in place. If the noncompliance is severe enough, the other parent can face charges for parental kidnapping as well.
If the other parent continually refuses to allow scheduled visitation or interferes in your custodial time, you have the option to request a modification of your current court order. A modification case requires a showing that a material change in circumstances has occurred since entry of the last order. A parent’s withholding of a child or alienation of a child can be enough to demonstrate such a material change.
If you’re facing a contested custody case, it’s time to get counsel. The top-rated attorneys at Melone Hatley, P.C. are here to help! Melone Hatley, P.C. is a family and estate firm serving Virginia Beach, Richmond, and Northern Virginia. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service. Through our high standards, we strive to be a trusted resource to our clients.
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