Failing to allow visitation in accordance with a court order can lead to serious legal consequences. The court may find the violating parent in civil contempt, which can result in penalties such as makeup parenting time, fines, or even jail time. Continued noncompliance may also affect custody arrangements, with the court potentially modifying custody in favor of the other parent. Violating visitation orders can harm the parent-child relationship and is viewed as interfering with the child’s best interests. Courts expect both parents to follow all custody and visitation orders unless a judge has approved a modification or suspension through proper legal channels.
In Matter of S.S. v. M.S., the Family Court of New York County addressed a dispute over compliance with court-ordered parenting time. The father, M.S., filed a motion seeking a finding of civil contempt against the mother, S.S., for failing to follow a visitation schedule.
Background Facts
S.S. and M.S. are the parents of four children born in 2013, 2015, 2017, and 2021. Starting in December 2021, the parties engaged in extensive litigation involving custody, visitation, and family offense petitions. A temporary order of protection was initially issued in favor of the father and the children. This was later modified to allow the mother parenting time.
In May 2022, the court ordered that the father was to have weekend parenting time with the children beginning May 20, 2022. This order was later confirmed again on June 13, 2022. However, the mother did not produce the children for visitation on multiple occasions, citing various reasons such as lack of a written order, concerns raised by the children, and the existence of a criminal court order of protection.
Despite these explanations, the court noted that the mother did not follow the proper procedures to suspend or modify the parenting schedule. The father filed a motion for contempt on July 14, 2022, after experiencing eight missed visits. The mother acknowledged missing several weekends but stated that she had resumed compliance after July 15, 2022.
Issue
The issue was whether the mother should be held in civil contempt for failing to comply with clear court-ordered visitation without a lawful excuse, and whether the father was entitled to remedies for lost parenting time.
Holding
The Family Court found the mother in civil contempt for violating visitation orders dated May 16, 2022 and June 13, 2022. The court declined to impose jail time but awarded the father makeup parenting time during school holidays to compensate for the missed visits.
Rationale
The court applied the standard for civil contempt under Judiciary Law § 753(A)(3). To establish contempt, the moving party must show that:
- There was a lawful court order containing a clear and specific mandate.
- The order was knowingly disobeyed.
- The party had knowledge of the order.
- The violation caused prejudice to another party’s rights.
The court found that each requirement was met.
The May 16 and June 13 visitation orders were clear. They set specific days and times for the father’s parenting time and explicitly directed that neither the temporary nor the criminal order of protection interfered with those rights. The mother attended the court hearings and was present when the orders were announced. She acknowledged knowing about the orders in her own sworn statements.
The mother did not comply with the orders for eight weekends. The court reviewed her reasons for noncompliance, including concerns raised by the children and advice allegedly received from child protective authorities. The court held that these reasons did not justify her actions. If the mother believed there were valid safety or emotional concerns, she had the option of petitioning the court for a modification. She did not do so. Instead, she made the decision herself to withhold the children, which directly contradicted the court’s instructions.
The father was harmed by the mother’s conduct. He missed eight weekends of parenting time. The court reaffirmed that a parent’s right to visitation is presumed to be in the best interest of the child unless proven otherwise. The children’s attorney reported that the children expressed a desire to see their father and had no safety concerns. The mother’s unilateral decisions deprived both the father and the children of scheduled contact, which satisfied the prejudice requirement.
Because the father proved all elements of contempt by clear and convincing evidence, the court granted his motion in part. However, the court declined to order jail time because the mother resumed compliance after July 15, 2022. The court found that a coercive order was not needed and that compensation for lost parenting time was more appropriate.
The court also denied the father’s requests for sole custody and supervised visitation. It explained that such relief was not justified based on the record. The father had not raised safety concerns about the mother’s care, and there was no custody petition currently pending. If the father wished to seek custody, he would need to follow the correct legal process.
Instead of ordering incarceration or a change in custody, the court awarded the father makeup parenting time during school holidays in November, December, January, February, and April. The court set out specific dates and times and ordered that pickups and drop-offs take place at a designated police precinct. The court warned that future violations could result in further findings of contempt and possible jail time.
Conclusion
The Family Court in Matter of S.S. v. M.S. reaffirmed that court orders for parenting time must be followed, even when a parent believes circumstances have changed. A parent cannot override a court’s directive based on personal judgment. The court found that the mother had violated clear visitation orders and prejudiced the father’s rights. As a remedy, it awarded makeup parenting time rather than jail time. This case serves as a reminder that visitation schedules issued by the court are binding, and violations can lead to legal consequences.