Contact (law)


Contact (law)

In family law, contact (or in the United States, visitation) is one of the general terms which denotes the level of contact a parent or other significant person in a child's life can have with that child. Contact forms part of the bundle of rights and privileges which a parent may have in relation to any child of the family.

Following ratification of the United Nations Convention on the Rights of the Child in most countries, the term "access" was superseded by the term contact. The terminology reflects a substantive change in the law. A parent is not necessarily any longer entitled to have "custody" of or "access" to a child. Instead, a child may be allowed to reside or have contact with a parent.

Contents

Concepts

In most jurisdictions the nature of a couple's relationship changes when a child is born to that relationship. In law, there may be differences in the consequences depending on whether the relationship is opposite-sex or same-sex, and whether it is a marriage, a civil union or registered partnership, or cohabitation (sometimes amounting to a common law marriage in some jurisdictions). All children are, to a greater or lesser extent, subject to the authority of their parents during the early years of their life, during what is termed their minority.

States impose a range of incapacities until the children reach an age when they are deemed sufficiently mature to take responsibility for their own actions. Issues of access and custody interact and overlap, and represent all of the aspects of care and control that parents may exercise in relation to their children. The extent to which the courts have jurisdiction to regulate access will depend on the nature of the parents' relationship. In the event of a marriage, the courts may adjust access rights as an aspect of proceedings for legal separation, annulment or divorce. In the event of other relationships, jurisdiction may be invoked by either spouse, partner, natural parent (which may sometimes include fathers from unlawful sexual relationships), adoptive parent, legal guardian or by a guardian ad litem appointed to represent any child's interests.

Residential parent

Residential parent is that parent with whom the children are staying in the majority of the time. This term started to be used since the implementation of the joint custody since both parents have the custody of the child but, usually the child lives in the house of one of them the majority of his time.

Non-residential parent

The non-residential parent is that parent that have been granted with the child custody but does accommodate the child in their house only for limited periods of time.

Policy background

As a specific application of parens patriae (see public policy and the concept of best interests), most states treat the interests of any children caught up in litigation as their first and paramount concern. Usually, the children are not directly the parties to the lawsuit, so the courts have a range of options including the power to appoint a guardian ad litem to protect their interests. This is particularly important in cases involving the breakdown of any family relationship where questions relating to the welfare of the children will become significant in sometimes acrimonious disputes. At a supranational level, the Convention on the Rights of the Child emphasises the need to allow children a voice in any proceedings affecting their welfare. Significantly, it also suggests a change to the terminology, replacing "custody" and "access" with the concepts of "residence" and "contact".

However, the most common legal outcome to cases involving the issues of care and control reinforces the sexual stereotype that a mother is always the better qualified person to care for younger children. Whereas some jurisdictions formally prefer joint custody arrangements in situations where there has previously been a stable family relationship, many states have a formalised rebuttable presumption in favour of the mother, requiring a sometimes unreasonably high level of evidence to rebut, with the result that the access rights of perfectly capable men are sometimes denied in favour of women who have demonstrated a poor track record of care.

Consequently, a new political trend represented by fathers' rights and men's rights movements, is developing in the United States, the United Kingdom, and other Western countries to demand 50-50 parenting (access and visitation are considered more archaic terms and the movements prefer the term parenting time). Under this system, there would no legal determination of custody, and the rights of both parents to equal time with their child(ren) (and vice versa) would be protected. For example, groups like Fathers 4 Justice, American Coalition for Fathers and Children (ACFC), Alliance for Non-Custodial Parents Rights (ANCPR), S.P.A.R.C. (Separated Parents Access & Resource Center) and National Congress for Fathers and Children (NCFC) work nationally and internationally. Bob Geldof, of Boom Town Rats, Band Aid, and Live Aid fame, is one of the leaders of the movement in the United Kingdom with Parents 4 Protest and The Sun's Justice 4 Dads campaign.

Parental responsibility in EU law

The European Union has set up machinery for the mutual recognition of Family Law judgments through Council Regulation 2201/2003 which continues the harmonisation of the rules on jurisdiction and on the recognition and enforcement of all judgments on parental responsibility. The intention is to ensure that parental responsibility orders can be recognised and enforced through a uniform procedure. The courts in the Member State where the child is habitually resident have the primary jurisdiction to rule on parental responsibility. The courts in the other Member States shall enforce those judgments unless:

  • this infringes public policy in the given Member State – an extremely unlikely eventuality;
  • the child has not been given the opportunity to be heard except in cases of genuine urgency (in all cases, the fundamental right of every child to be heard and for his or her views to be given due weight in accordance with their age and maturity, is provided in Article 24 Charter of Fundamental Rights of the European Union which also states that the child's best interest shall be the primary consideration in all cases affecting their interests, whether initiated by public authorities or private institutions);
  • the person claiming that the judgment infringes his or her rights of parental responsibility has not been given an opportunity to be heard, or was not allowed a reasonable time to prepare his or her defence (see natural justice); and
  • the judgment is irreconcilable with a second subsisting judgment (under certain conditions).

Following a proposal from the Commission in May 2002, a regulation on parental responsibility which was adopted on 27 November 2003 and applies from the 1st March 2005:

  • ensures the right of the child to maintain contact with both parents even when the parents live in different Member States by allowing automatic recognition and enforcement of judgments on access rights, and
  • seeks to prevent parental child abduction within the Community. The courts of the Member State of the child's residence before abduction always have the jurisdiction. Some parents have abducted children to their own states in the hope of receiving more favourable treatment. The courts of the abducting parent's nationality can only refuse to return the child immediately if this is necessary:
either because there is a grave risk that the child would be in danger if he or she returned, or
if the child has attained a certain age and maturity and does not want to return.
But the court in the state where the child resided before the abduction takes the final decision as to where the child shall stay, and such decisions must be respected in the state of current residence.

Contact in English law

Contact Orders are made under s8 Children Act 1989 to require the person(s) with whom a child lives to allow that child to visit, stay or have contact with a person named in the order. Orders continue until the child is 16 years. So long as the child is not under the care of a local authority, the following people can apply for a Contact Order:

  1. the parent or guardian of a child (s10(4)(a));
  2. anyone who holds a Residence Order in respect of that child (s10(4)(b));
  3. a married stepparent of the child where the child lived with the stepparent as a child of the family (s10(5)(a));
  4. anyone with whom the child has lived for at least three years (this period need not have been continuous but must have been recent) (s10(5)(b));
  5. anyone who:
a) where there is already a Residence Order in place has the consent of every one who holds that order or
b) who has the consent of the local authority where the chid is in their care or
c) has the consent of every one who has parental responsibility for the child.

If an applicant cannot apply for the order as of right they can make an application to the court seeking leave to issue the application. In deciding whether to grant the leave the court will consider under s10(9), amongst other things:

  1. the nature of the application;
  2. the applicant's connection with the child;
  3. the risk there might be if the proposed application disrupting the child's life to such an extent that they should be harmed by it.

Under s11, the court must attempt to avoid delay in making an Order. The court will only make contact orders for children over sixteen years old in exceptional circumstances. Contact can either be direct e.g. face-to-face meetings with a person or indirect e.g. by letter, video, exchange of greeting cards etc. Some orders will be very specific as to times, dates and arrangements for contact, other orders will be more open with detailed arrangements to be made between the parties by agreement. These orders are not just obtained by parents for contact with their children, there can also be orders for contact between siblings or the child and wider family members. Sometimes the order will give directions that the contact is to be supervised by a third person. The order may also only be for a specific period or contain provisions which operate for a specific period. These are Orders of the court and a failure to comply can be a contempt of court with serious consequences.

Contact represents a change in fundamental concept to disputes involving the upbringing of children. Prior to The Children Act 1989 in the jurisdiction of England & Wales [and in Scotland in the Children (Scotland) Act 1995], an adult was usually granted 'access to' a child; now a child is to be allowed 'contact with an adult' [or stepbrother/sister]. Sixteen years after the Children Act 1989 became law, judges and the media in England still on occasion refer to 'custody and access' instead of 'residence and contact', and some judges are making orders such as 'father to have contact with the child' contrary to 'the child be allowed contact with father' as it argued by certain legal establishments the difference is minimal and in nomenclature only. The law is quiet clear that 'a residence order' undoubtedly gives additional rights to the residential parent, and does diminish the parental responsibility of the non-residential parent, in various ways. [b Hoggett]. Therefore custody and residence, or contact and access can be in some circumstances be interchangeable concepts in family law. The argument that 'winner no longer takes all' in contact/residence access/custody disputes does not hold water.

Visitation in the U.S.

Generally speaking, visitation is considered only a privilege granted to the non-custodial parent of any child of the family. The standard short-distance parenting plan by the family court in most U.S. states consists of alternating weekends and some holidays, there are also medium and long-distance parental plans that allow to combine these visits into a longer stretches of time to reduce traveling.[1][2] Parents normally can make variations to the state standard parenting plan or develop a different custom plan if judge approve the changes. In most of the states there is a law required that court-ordered parenting plans must set forth the minimum amount of parenting time and access a noncustodial parent is entitled to have.[3][4][5][6][7]

However, the child, at or around the age of 13, depending on the state, may have a right to testify in court about custody and parenting plan arrangements that may have a big impact on court decision.

Parents (and in some jurisdictions grandparents) frequently believe that they have a right to visitation or access; however, courts in several countries have used the subjective doctrine of the best interests of the child to deny parental or grandparental access to the child(ren). This is commonly found in cases when custody of the child(ren) is disputed and there is a history of interference with visitation. In such high-conflict cases, there are often allegation of child abuse and/or domestic violence.

Most noncustodial parents have visitation orders that allow the child to visit with them without any supervision, away from the custodial residence. But sometimes when there are safety problems or child abuse history, the court can set up a supervised or "safety-focused" parenting plan.[1] Also, court can order the visitation to be supervised by a social worker, parenting coordinator, guardian ad litem, or other third party while the noncustodial parent visits with the child. This is called supervised visitation.

Parents may also agree share custody and agree to allow visitation without of going to court. In these situations, so it is seem like a court order may not be needed, it should be obtained to forestall later disputes about what the parents had previously agreed to, and to allow the courts to have some oversight over the children (which they normally have under statute and under the parens patriae power). If the parenting plan agreed by parties before the court hearing, it is called "stipulated". Judge can approve the stipulated parenting plan without of any court hearing. Judges are normally encourage parties to reach the agreement, rather than go to hearing. By statistic, most family law cases (90–95%) settle before the judge rules on them.[8]

Access in Japan

In Japan, there is no legal guarantee of access by a noncustodial parent. Despite this, courts do often grant access rights to a noncustodial parent in the event of a divorce, or to the father of a child born out of wedlock, who by law is declared noncustodial by default. However, these court ordered visits are often only for several hours once a month, and in some cases, only once a year. Further, courts will not enforce these access provisions when the custodial parent is not co-operative. Several groups are working to change related laws and provide more detailed information on these laws and alternatives.

See also

References

Supervised Visitation Directory


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