Delegation of Visitation by a Parent to the Grandparents

[Dogmatique]

You mention that the parent had a "reasonable belief". That's all well and good, but we all know that the courts are extremely reluctant to mess with the parent's right to control what happens during their parenting time without having proof. What was the proof? Did they children testify? To what?

[Taxing Matters]

However, off of the top of my head I can think of at least a dozen or so cases, similar to this one, where the custodial parent was not found in contempt for denying the grandparent's the right to pick up the children when the custodial parent had a reasonable belief that the non custodial was not present for the visitation.

Did any of those reach appellate level? If so, please cite one of them I’d love to see it. I’ll offer one that helps support my position. An appellate case from Ohio in which the mother did not allow her kids to go with the grandparents when they came to pick them up for visitation with the father. In that case the mother made the argument that it was an attempt to back door visitation with the grandparents and thus claimed the father was attempting to modify the visitation orders. The Court of appeals upheld the trial courts decision holding the mother in contempt for not releasing the kids to the grandparents and rejected her back door visitation argument. Caldwell v. Caldwell.

[llworking]

You mention that the parent had a "reasonable belief". That's all well and good, but we all know that the courts are extremely reluctant to mess with the parent's right to control what happens during their parenting time without having proof. What was the proof? Did they children testify? To what?

I am speaking of "reasonable belief" in the sense that it was not willful and malicious contempt.

Did any of those reach appellate level? If so, please cite one of them I’d love to see it. I’ll offer one that helps support my position. An appellate case from Ohio in which the mother did not allow her kids to go with the grandparents when they came to pick them up for visitation with the father. In that case the mother made the argument that it was an attempt to back door visitation with the grandparents and thus claimed the father was attempting to modify the visitation orders. The Court of appeals upheld the trial courts decision holding the mother in contempt for not releasing the kids to the grandparents and rejected her back door visitation argument. Caldwell v. Caldwell.

I do not remember any of the cases going beyond the trial court level. Some of the cases went back to court multiple times, but I do not remember any going beyond the trial court level.

Edit to add: I did just get finished reading the case you cited, and I do not think its on point, because mom never alleged that dad was not present for his visitation. Of course mom could not have alleged that since dad never got any visitation at all. Therefore mom could not allege that dad was never present. Still though, I am surprised at the harshness of the ruling. Dad never tried to pick up the children himself.

[Dogmatique]

I am speaking of "reasonable belief" in the sense that it was not willful and malicious contempt.

You spoke about the parent having "reasonable belief" that the other parent wouldn't be present. I want to make sure I understand what you're saying.

Let's name the parents Chris and Ashley. Chris is the NCP and has a crappy car that usually won't make it beyond the driveway, so Chris's parents regularly pick up the children during Chris's parenting time. This works fine, until Ashley gets into a snit for some reason and refuses to hand over the kids because "It's Chris's parenting time, not the grandparents". Chris takes Ashley to court. Neither parent disputes the fact that Ashley did indeed withhold the children. Are you saying that the court will rule in Ashley's favor based on nothing but Ashley's word?

[Taxing Matters]

Edit to add: I did just get finished reading the case you cited, and I do not think its on point, because mom never alleged that dad was not present for his visitation. Of course mom could not have alleged that since dad never got any visitation at all. Therefore mom could not allege that dad was never present. Still though, I am surprised at the harshness of the ruling. Dad never tried to pick up the children himself.

But that’s what I’m trying to get at, finding a case that reflects your position that it matters that Mom claims that Dad never spent any time with the kids at all and claims to have a reasonable belief on that. Or put another way, I’m trying to find a case that supports your apparent contention that Mom does not violate the visitation order in refusing to let the kids go based on that belief when there is nothing in the court order prohibiting the grandparents from picking them up such that the court could not impose contempt sanctions.

So far as I have found in my search of cases I have yet to see where a court has made that particular distinction. A court might decide in its discretion not to impose contempt sanctions for a particular violation of the order and instead make it clear to Mom that she has to follow the order and allow the kids to go with the grandparents (unless she succeeds in getting the court to change the orders to allow her to refuse to release the kids to anyone but Dad). And that may be the way the orders in the cases you have in mind went. In such cases, the court might decline to whack the parent with contempt even though the parent was in violation of the order because the judge may feel that imposing such sanctions might be too severe for the violation in question and that making it clear to the parent that he or she cannot refuse to allow visitation in that circumstance is enough to cure the problem. A judge has that discretion. But exercising that discretion does not mean that the parent was entitled to refuse the visitation or that the parent did not run the risk of contempt by his/her refusal. Instead, what I see in the appellate decisions are more along the lines of the case I cited: where the court has imposed contempt for refusing to let the kids go when the grandparents picke them up. It’s not guaranteed a court will impose sanctions for any violation of a court order, but certainly that risk is always present.

What I don’t see in the case decisions is anything that says that Mom would be justified and not in violation of the order in refusing to let the kids go with the grandparents, absent some provision in the current orders that effectively prohibits the grandparents from picking them up.

For what it’s worth, I don’t share your feelings about the Caldwell decision. I don’t see any good basis for her to refuse to let the kids go with the grandparents when the father arranged for that to exercise his visitation. So I don’t think the court was overly harsh. But then, I think you and I have differing views on the underlying situation, too. I think that Mom trying to dictate to Dad how he exercises visitation is the real problem here. I see far too many cases of parents trying to impose their will on how the other parent does things (which often has nothing to do with the best interests of the kid and more to do with getting back at the ex because of bitterness or whatever at their break-up). You, with your apparent advocacy background to limit or eliminate altogther grandparent visitation rights, seem to be more focused on the grandparents getting time with the kids as the real problem. My response to that is that if Mom doesn’t want the grandparents involved with the grandkids that she needs to first get a court order limiting their involvement before she is entitled to refuse to let them go on visitation with Dad. That best balances both concerns, in my view.

[llworking]

You spoke about the parent having "reasonable belief" that the other parent wouldn't be present. I want to make sure I understand what you're saying.

Let's name the parents Chris and Ashley. Chris is the NCP and has a crappy car that usually won't make it beyond the driveway, so Chris's parents regularly pick up the children during Chris's parenting time. This works fine, until Ashley gets into a snit for some reason and refuses to hand over the kids because "It's Chris's parenting time, not the grandparents". Chris takes Ashley to court. Neither parent disputes the fact that Ashley did indeed withhold the children. Are you saying that the court will rule in Ashley's favor based on nothing but Ashley's word?

No,

I will give you an example:

Dad has every other weekend and one night a week. Dad moves out of town, 4 hours away. The grandparents keep picking up the child every other weekend and one night a week. Mom is certain that dad is not present for the one night a week, and according to the child dad is only present maybe once every two months for one weekend. Mom denies the grandparents the right to pick up the child. She insists that dad be the one to pick up the child. The judge rules that Ashley is not in contempt, but believes dad that he intends to exercise his every other weekend but needs the grandparent to pick up the child because he cannot arrive from out of state in time to do so. The judge says ok, the grandparents can pick up but dad must return the child to mom before he leaves to go back to his state, demonstrating that he was actually there.

So, the grandparents no longer get to pick up the child one night a week, but continue to pick up on the weekends. However, dad only brings the child back to mom about one weekend every couple of months. Its always the grandparents who bring the child back. Mom starts not allowing the grandparents to pick up the child again. Dad takes her back to court. The judge rules this time that the grandparents may not pick up the child at all. Dad has to do it himself. For a while dad picks up the child at least once a month, but then goes back to once every couple of months.

I am talking about scenarios where its credible that the ncp is either not present or rarely present...not a situation where its clear that cp is just using it as an excuse to deny the ncp's parenting time. And...even if dad has a crappy car, that is no reason why dad cannot go WITH the grandparent to pick up his child. That is one sure fire way to nip that kind of behavior from mom, in the bud.

[Mr. Knowitall]

Made-up examples may be of significant import if we're writing a script for a Lifetime movie and aren't much concerned about what courts actually do, but what else are they actually good for?

There is no need for a parent to tag along when a responsible third party facilitates a visitation exchange, no matter what scenarios the other parent has cooked up as to whether or when he'll get the children from the responsible third party.

[llworking]

Made-up examples may be of significant import if we're writing a script for a Lifetime movie and aren't much concerned about what courts actually do, but what else are they actually good for?

There is no need for a parent to tag along when a responsible third party facilitates a visitation exchange, no matter what scenarios the other parent has cooked up as to whether or when he'll get the children from the responsible third party.

That wasn't a made up example. That was one of the cases I remember. I do not have a good enough imagination to come up with that without it being a true story.

There is every reason for a parent to tag along with a responsible third party if his/her visitation is being denied. It makes sure that he/she sees their child while dealing with any court case for contempt/clarification. Its when the parent allows the other parent to continue to deny visitation by not tagging along that it makes it seem like the parent may not actual be exercising their visitation at all.

[Mr. Knowitall]

You can certainly assert that the stories you pull out of the cobwebs of your memories are not made up, but the rules you keep insisting that courts will apply are made-up. Parents do not have to jump through hoops to satisfy the paranoia or delusion of the other parent -- and absent a court order to the contrary, it is 100% acceptable to send grandparent to pick up a child for an exchange without going along.

[Taxing Matters]

I am talking about scenarios where its credible that the ncp is either not present or rarely present...not a situation where its clear that cp is just using it as an excuse to deny the ncp's parenting time.

In the case example that you remember, it is not clear that the court held the mother was in compliance with the court order when she withheld the kids from the grandparents. It may well have been that the court held that the mother violated the order but just declined to impose contempt sanctions and instead make it clear to her that the grandparents are, in fact, able to pick up the kids. The very situation I suggested before. That means that the mother could have been hit with contempt sanctions but was fortunate to avoid that. Then she did what I would have suggested she do in the first place: move to have the court impose limitations on the grandparents picking up the kids rather than simply refusing and potentially putting herself at risk for contempt. So far, I’m not seeing any court opinion that suggests Mom is not in violation of the order when refusing to let the grandparents pick up the kids unless the court order has some restriction on the grandparents picking them up.