Edward B. Borris, Assistant Editor, Divorce Litigation
I. Introduction
Interference by one parent in the relationship of a child and the other parent is almost never in the child's best interests. In fact, in extreme cases, actions by one parent to alienate the affections of the child from the other parent, to interfere win the other parent's visitation rights, or to remove the child to a distant state or country can often lead to liability in tort. See generally E. Borris, "Torts Arising Out of Interference with Custody and Visitation," 7 Divorce Litigation 192 (1995). Tort liability is not always an option, however, as many courts refuse to award damages based upon interference with visitation rights. E.g., Cosner v. Ridinger, 882 P.2d 1243 (Wyo.1994)
A noncustodial 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. This article discusses a different type of liability which may result from interference with the noncustodial parent's rights: loss of custody. The article will first discuss whether a party may generally obtain a change of custody based upon such interference. The article will then examine specific acts by a custodial parent which may cause a court to change custody, including denial of visitation rights, alienation of the child's affections away from the noncustodial parent, and removal of the child to a distant jurisdiction. The section on alienation of the child's affections includes a discussion of Parental Alienation Syndrome (PAS) and recent cases that have dealt with PAS. The article concludes with a suggestion of possible provisions that practitioners may insert in custody decrees in order to prevent future problems between custodial and noncustodial parents.
II. Interference Amounting to a Substantial Change in Circumstances
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 noncustodial 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.
Not surprisingly, there is a long-standing tradition of awarding a change of custody where the custodial parent has interfered with the parental rights of the other parent. The Court of Appeals of Maryland clearly established this point in Berlin v. Berlin, 239 Md. 52, 210 A.2d 380 (1965). In Berlin, the parties entered into a written separation agreement. Pursuant to the agreement, incorporated into the court's order, custody of the children was awarded to the mother, and the father received reasonable visitation rights. In addition, the parties also agreed that the mother would notify the father if the mother moved out of the Washington metropolitan area. Subsequently, the mother began denying the father his right to visitation. For this reason, the father requested a change in custody. The trial court granted the father's request, and the mother appealed. [...]
V. Conclusion
As the authority cited in this memorandum indicates, while obstruction of the noncustodial parent's relationship with the child will often lead to a change in custody, such a change is not guaranteed. Courts appear 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. See Humphrey v. Humphrey, 888 S.W.2d 342 (Mo.Ct.App.1994) (no change of custody was warranted where mother failed to honor father's visitation rights on only one occasion). If, however, a custodial parent has developed a pattern of refusing to allow visitation or otherwise interfering with the noncustodial parent's relationship with the child, the court should award a change in custody. E.g., Sullivan v. Sullivan, 216 A.D.2d 627, 627 N.Y.S.2d 829 (1995) (modification of custody was justified where mother consistently violated court-ordered visitation and telephone contact).
In order to prevent a child's relationship with the noncustodial 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 noncustodial parent. Otherwise, similarly to the father in In re Marriage of McDole, supra, the noncustodial parent may surprisingly discover that the custodial parent has left the jurisdiction without a forwarding address.
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 noncustodial 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 panacea, the above three provisions may give the noncustodial parent the extra edge which he or she may need in a postdissolution 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.
II. Interference Amounting to a Substantial Change in Circumstances
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 noncustodial 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.
Not surprisingly, there is a long-standing tradition of awarding a change of custody where the custodial parent has interfered with the parental rights of the other parent. The Court of Appeals of Maryland clearly established this point in Berlin v. Berlin, 239 Md. 52, 210 A.2d 380 (1965). In Berlin, the parties entered into a written separation agreement. Pursuant to the agreement, incorporated into the court's order, custody of the children was awarded to the mother, and the father received reasonable visitation rights. In addition, the parties also agreed that the mother would notify the father if the mother moved out of the Washington metropolitan area. Subsequently, the mother began denying the father his right to visitation. For this reason, the father requested a change in custody. The trial court granted the father's request, and the mother appealed. [...]
V. Conclusion
As the authority cited in this memorandum indicates, while obstruction of the noncustodial parent's relationship with the child will often lead to a change in custody, such a change is not guaranteed. Courts appear 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. See Humphrey v. Humphrey, 888 S.W.2d 342 (Mo.Ct.App.1994) (no change of custody was warranted where mother failed to honor father's visitation rights on only one occasion). If, however, a custodial parent has developed a pattern of refusing to allow visitation or otherwise interfering with the noncustodial parent's relationship with the child, the court should award a change in custody. E.g., Sullivan v. Sullivan, 216 A.D.2d 627, 627 N.Y.S.2d 829 (1995) (modification of custody was justified where mother consistently violated court-ordered visitation and telephone contact).
In order to prevent a child's relationship with the noncustodial 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 noncustodial parent. Otherwise, similarly to the father in In re Marriage of McDole, supra, the noncustodial parent may surprisingly discover that the custodial parent has left the jurisdiction without a forwarding address.
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 noncustodial 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 panacea, the above three provisions may give the noncustodial parent the extra edge which he or she may need in a postdissolution 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.
Unfortunately the courts tend not to want to try to figure out the veracity of claims in a he-said/she-said quarrel between bitter exes fighting over their children.
ReplyDelete@david, we are not talking about a "he-said/she-said" situation as you put it. We have been through this, his violence is undisputed, http://helpbeth.blogspot.co.il/p/blog-page_26.html and the damage he is causing to to the children every day is undisputed (including having their teeth removed).
ReplyDeleteIt is purely judicial corruption that sees him maintain custody to allow him to effectively imprison and torture two innocent children. I do not understand why you are having trouble accepting this.
If you need confirmation as to whether he is an avid reader of this blog, look no further than here: http://daattorah.blogspot.co.il/2014/03/a-psychiatric-examination-of-dr.html
I would also not be surprised if he presented print-outs of daas torah blog pages to the judge during court proceedings, although I doubt even he would be as pathetic as that.
Instead of sympathizing with Schlesinger, why don't you ask him these questions yourself, or ask one of his supporters to issue a guest blog post here?
The author is advocating a tort of denial of custody / visitation. Courts will never accept this, even if legislated.
ReplyDeleteHowever, matrimonial attorneys have high malpractice rates, cause they are often sued when a wife loses custody / visitation. Thus the tort exists in legal malpractice (which is almost always not successful.)
2. As for the three clauses the author wants to put in every divorce agreement, they are completely unenforceable. Not only that, a custodial mother who goes to court to change residence out of state and or over 50 (or whatever) miles almost always gets court permission, with little showing of need (this was the issue in the friedman / epstein case, where the ex wife would not agree to any limitation on her future residence.
These cases are only he-said/she-said because the courts are not examining the evidence and proof!!
ReplyDeleteWho is the father that this is intended for?
ReplyDeleteShould it be intended for any one father?
ReplyDeleteI would like to refer to Michael Schlesinger in Vienna , where it appears that he, as custodial parent, is not acting in the best interests of his children.
He may have custody, but this does not mean that he should be intent on blocking the children's mother out of their lives and speaking badly of her. He accuses her of speaking badly of him, but he does everything in his power to provoke her. Beth has to use restraint, because she only works in the best interest of her children.
The children know what they see and what they feel, even if they are unable, or are too frightened to speak out, because if they do, the father will silence, or threaten them. He gagged Beth, so we know what he is like!
Being the vindictive person he is, I am sure that even if they tell him how much they want to see more of their mother, or even to be with her full time, he probably punishes them and tells them that if they ever say that again, he will never let them see her again!
We have seen over the four years since Michael Schlesinger has had the children how he has punished Beth and the children by cancelling many visits and not allowing the children to see Beth more.
He won't even do the handovers himself or allow a Jew to do them, free of charge. He insists that a non Jew does the handovers at a cost of 50 euros a time! Why?
Why is is asking for so much maintenance from Beth in order to pay for childcare, when Beth is perfectly willing and able to take care of her children?
Is it because he is trying to bankrupt Beth and drive her out of Vienna?
Is he trying to break the children's bond with Beth?
Does he look at the children as his possessions?
It has been noticed in Vienna that the children have lost a lot of weight, why is this?
Are the children up to par yet?
Are they going to leave the kindergarten and go to school in September?
If not, why?
What is his vision for his children?
Does he think they will stay the babies he snatched from their mother's arms four years ago, forever?
Does he think he can force them to love him and want to stay with him?
Is the custodial parent Michael Schlesinger acting in the best interests of his children and if so please tell us on this blog why?
It has been noticed how much weight the children are losing!
ReplyDeleteCould this be that they are being under fed, or refusing to eat as a form of protest or they are depressed.
Is anyone listening to them or are adults just deciding what they think is best.
Maybe some love and nurturing from their mother is really what they need to allow them to thrive and reach their full potential!
Has the father or the court or anyone else thought of that?
Do any of them really have the interests of the children at heart?
There's an old expression. You can take a horse to water but you can't make it drink.
ReplyDeleteYou can't force feed children or make them learn even with all the therapy in the world.
Children will not thrive if they are unhappy and It's obvious that the Schlesinger twins are desperately unhappy! This is why they are losing weight!
They are obviously yearning for their mother. Michael schlesinger needs to stop being selfish and think about his children and give lots more time with their mother and allow them to thrive.
What's his problem? What sort of doctor is he when he doesn't care about the health and welfare of his children?
If I were the mother of the Schlesinger twins and always told the truth about the father, I would have to describe him as a liar. Obvious examples are his referring to his sane ex-wife as being mentally ill (which she is documented not to be) or his swearing that he did not assault her outside the courtroom recently (a witness saw it happening). The Vienna community knows from these events and many others that Dr Schlesinger is a liar so it is no use his demanding Beth stop telling the truth about him!
ReplyDeleteIf she heeded his wishes and told her many friends and supporters he was a delightful man who only made his children happy and was always in a good mood, we would indeed believe her to be insane!
Around the IKG in Vienna, people who meet these twin boys notice their speech is very backward for their age (about 6 I gather). More like 2-3 year olds. So when we hear the dad has been taking them to speech therapy for 4 years, why haven't they recovered from the trauma that caused their speech development to stand still for so long? Looks to me folks like they're with the wrong parent. Why does nobody do anything about this! They need to be with their mum for their general wellbeing and especially their speech development. Or do Jews like this dad get some kind of sadistic pleasure out of keeping kids backward?
ReplyDeleteThis is not about who says what. The court is not looking at the state of the children and properly assessing their needs.
ReplyDeleteThey don't eat, they are not doing well at school. No therapy is working. because school and therapy,can't fix the children alone. It is evident after four years that this will only happen if the mother is involved.
How much more pain is the father going to give his children?
.
This father sounds like a sadist Rina. He prevents his kids from learning to speak properly by having them cared for by non-Jewish foreigners, sends them to a preschool where they're in a family group with lots of little tots, forbids the kindergarten staff to speak to the mother (!!), can't be feeding them what they need because they look underweight according to various people, takes them to therapy that doesn't work, and hasn't encouraged them enough at home (is he ever there?) for them to be ready for school at 6 1/2. Is he really furthering the kids' personalities better than the mother could? Surely not. Do the boys have a better relationship to him than to her? Betcha they don't. These are the things that count in court in a custody case. When is the judge going to wake up to what she's done to them by awarding them to an incompetent, sadistic man?
ReplyDeleteA guy who incites hostility.
ReplyDeleteWhere is all the outrage when all too commonly it's the mother who is perpetratring the alienation on the father? Or is the excuse that 'the mother is more suited to raise the child' used to cover up the fact that the child is suffering emotional damage by keeping the father away. Any parent who alienates their child is to be considered abusive and a danger to the welfare of that child.
ReplyDelete