When you are dealing with an uncooperative co-parent, every visitation can seem like a battle. How can you protect your relationship with your child when your ex won’t give you the time of day? What can you do when you are denied parenting time?
Michigan Law Presumes Parenting Time for All
Michigan law presumes that children benefit from strong relationships with both parents. Custody and parenting time orders are designed to make sure both parents have time with and access to their children. There are exceptions, when one parent is truly unfit or when visitation could be dangerous, but it is a rare case indeed where the non-custodial parent’s parenting time is suspended entirely.
What that parenting time looks like can vary greatly depending on the circumstances of the parents, and their proximity. When parents live far apart, and especially when one parent is on active military duty, family court judges often have to get creative to ensure a continuing relationship between parent and child.
What Happens When Parents Are Denied Parenting Time
Ultimately, however, a parenting time order is just a piece of paper. An uncooperative parent can ignore the court-ordered visitation schedule, and interfere with the non-custodial parent’s ability to connect with the child. Then what? How can you fight back when you are denied parenting time?
Many parents would assume that if their co-parents were hostile, it would be the basis for a Motion for Change of Custody. The truth is that using a custodial parent’s denials against them is often a much longer process.
McRoberts v Ferguson: Military Parent Denied Parenting Time
The recently published Michigan Court of Appeals case, McRoberts v Ferguson, shows how patient a non-custodial parent sometimes has to be when he has been denied parenting time. McRoberts and Ferguson had a child in March 2011, before Ferguson joined the United States Navy. Ferguson was awarded parenting time in 2013 as part of a child support case. Over the next three years, Ferguson’s parenting time was increased, but McRoberts repeatedly violated the parenting time orders, denying Ferguson’s in-person visitation and Skype visits with the child. She also encouraged the child to call her boyfriend “daddy” and call Ferguson “Kyle”. In January 2016, the couple went to court, and Ferguson was awarded make up parenting time. Ferguson was stationed in California at the time.
But when Ferguson’s wife flew from San Diego to Detroit to pick up the child, McRoberts didn’t allow the child to go back with her. The couple went back to court in March 2016, and McRoberts was given a warning: one more parenting time violation would land her in jail for contempt of court and put the child in Ferguson’s custody. The court also ordered that the child attend counseling.
By June 2016, McRoberts was in contempt again. She had failed to schedule counseling and was still encouraging the child to call Ferguson “Kyle” instead of “daddy”. The child was finally able to spend some of the summer vacation with her father, who was now permanently stationed in Virginia, but by December 2016, the parties were in court yet again. McRoberts had denied parenting time via Skype 14 times. The child had also accumulated several absences and tardies in the 2016 school year, and had not received proper dental care. The court finally made good on its promise, sentencing McRoberts to 30 days in jail and awarding temporary custody to Ferguson. A subsequent hearing made that arrangement permanent.
Why Is It So Hard to Modify Custody for Denied Parenting Time?
Why did it take over a year for the court to award Ferguson custody when McRoberts was denying him parenting time? Because first, the court had to be convinced that there was “proper cause” or a significant change of circumstances that will significantly affect the child’s life. Michigan courts have said that “minor allegations of contempt or visitation complaints” aren’t enough to reach that proper cause or change of circumstances threshold.
That means the first, second, maybe even third time a non-custodial parent complains about a parenting time denial, it won’t be enough to modify custody. In McRobert’s case, it wasn’t until she stood up Ferguson’s wife at the airport that the denial of parenting time was serious enough to get the court’s attention. Even then, the court gave her a chance to change her ways before modifying custody. When she refused, the court finally found that awarding Ferguson sole legal and sole physical custody was in the child’s best interests.
The courts are resistant to modifying custody because any significant change can significantly affect children. Especially when parents live far apart, a change of custody for parents means a loss of friends, school, and familiarity for the children. It means learning new rules and habits, and redeveloping connections that may have been years in the making. Before a court makes a child go through all of that adjustment, the judge wants to know the move is necessary.
If you are routinely denied parenting time, it can feel like modifying custody is the only answer. And sometimes it is. But if you are asking the court to shake up your child’s life because of your ex’s behavior, be ready for it to take a while.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps parents modify and enforce custody and parenting time orders. If you have been denied parenting time, contact Schmidt & Long for a consultation.