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Abstract

Most family law statistics are sobering. For example, in 1986, there were 2,400,000 marriages in the United States and 1,159,000 divorces. In 1985, there were 2,425,000 marriages and 1,187,000 divorces. Millions of children are affected by these divorces each year as courts decide which parent should be awarded their custody. In 1986, there were approximately 63,000,000 American children and 6,139,000 of these children came from broken homes. According to official census statistics, twenty-one percent of America's children live only with their mother while less than three percent live only with their father. In most divorce cases, Mom gets custody and Dad gets visitation. The parent who is awarded custody is responsible for ministering to the daily needs of the child while the noncustodial parent is allowed visitation time in order to maintain some relationship with the child. To many noncustodial parents, the term "visitation" is a derogatory term connoting a visit by the child to a barely known relative in another part of the state or a trip to some inanimate tourist attraction like the Sear's Tower or Mount Rushmore. Ideally, however, the time children spend with the noncustodial parent is frequently quality time, and noncustodial parents would doubtlessly prefer that that time be known as "parenting time" rather than "visitation." Nevertheless, the term "visitation" will be used in this Article because it is employed throughout the country by state legislatures in their family law statutes. The terminology of visitation reveals an insensitivity on the part of legislatures to the plight of noncustodial parents and, perhaps more importantly, a disregard for the important role that noncustodial parents should play in rearing their children. This attitude is further manifested by the substantive law governing enforcement of court-ordered visitation. Because negative emotions such as vengeance and bitterness frequently attend divorce, custodial parents often deny noncustodial parents visitation with their children. The most common remedy for such denial is the jail-or-comply approach of contempt of court. Many judges, however, refuse to jail the custodial parent who violates visitation rights because imprisonment is considered too harsh for the custodial parent, and potentially detrimental to the child. A noncustodial parent is typically left, therefore, with no effective mechanism for demanding that the custodian obey the visitation provisions of the divorce decree. This Article argues that both the needs of the child and those of the noncustodial parent warrant improved protection of visitation rights.

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