Can Visitation Be Withheld if Abuse is Occurring

In 2009, I was awarded full legal custody and primary physical custody of my children. Included in the case was a custody evaluation by a child psychologist who said that the children were at risk for ongoing mental and emotional problems due to my ex-wife’s extensive efforts to create parental alienation. Since the change in custody, the children improved significantly in my care. I have largely been able to keep them sheltered from her behaviors. Two of my children have reached adulthood, but one 13 year old daughter remains under the custody order.

After a number of recent incidents, something happened two weeks ago that culminates in what may be considered a “substantial change in circumstances” that would warrant a modification to our custody order. My ex-wife did not take our daughter to school at the end of her visitation, which ended on Monday morning. Instead, she kept our daughter out of school and spent the day trying to get her to agree to not return home. She repeatedly tried to get my daughter to “confess” that I am sexually molesting her - a charge which she has made in the past that has been unsubstantiated by Child Protective Services. However, the allegation did cause significant disruption to all of our lives and my daughter fears having to go through all of that process again.

Because of the recent questions and prodding by my ex-wife, my daughter thinks that her mother may be preparing to make another allegation. She is also very concerned because my ex-wife made her give a urine sample but would not tell her what she was going to use it for. Although I have full control of medical decisions, my ex-wife would not tell me what she is doing with the urine. My daughter and her 18 year old brother also called their mother to express that my daughter frequently has headaches, nightmares and an upset stomach due to my ex-wife’s treatment of her. When asked, my ex-wife refused to tell either of them what her plans for the urine sample are. She only said that what she was doing was “in their best interests” and to “protect” my daughter. Given that no abuse is taking place in my home, my daughter feels very manipulated by her mother and does not want to go for visitation - at least for the next few weeks until things calm down.

This problem has gone on for many years and my daughter is showing signs of emotional distress frequently. I intend to file a pro se motion this week to modify custody based upon the ongoing maltreatment of my daughter, and to request supervised visitation. However, we are concerned that at this upcoming weekend visitation, my ex-wife will continue to try to emotionally manipulate my daughter. My daughter is worried that it is going to be another weekend of headaches, nausea and nightmares like it was for her the previous week. I want to be able to keep my daughter home, but my ex-wife does have visitation rights under the custody order. I don’t want to jeopardize my good parenting record for the upcoming hearing to modify custody by “depriving” my ex-wife of her visitation. I don’t know what to do. Last week, not only did she manipulate my daughter to tears repeatedly, but she violated my custody rights by keeping her an extra day (and out of school) without my permission.

One additional point: I was advised to talk to Child Protective Services about this problem, and I did. My ex-wife is under investigation for emotional child abuse and I have a preliminary letter from CPS that states that it appears to them that emotional child abuse is occuring.

I am soliciting counsel on this matter regarding the wisdom of not making my daughter go for visitation this week, despite my ex-wife’s visitation rights.

If you do not allow your ex wife to have visitation as provided in the order, she has grounds to file a motion for contempt. That being said, you would be able to provide your reasons for not complying with the order at a hearing on contempt. You can raise the emotional abuse, the odd urine sample situation, the fact that your daughter doesn’t want to go, etc. as reasons why you did not comply with the order.

I would certainly go ahead and file a motion to modify custody as well, as you mentioned in your post.