Maryland Divorce Lawyer Blog
Many non-custodial parents (parents without primary physical custody) are left wondering what to do after being denied scheduled visitation with their child. As of July 1, 2009, those parents may not only have two, but three avenues to pursue.
The first and most frequent method of enforcing a Maryland visitation order that has been violated is through the court’s contempt powers. In accordance with Section 9-105 of the Family Law Article, Annotated Code of Maryland, if “the court determines that a party to a custody or visitation order has unjustifiably denied or interfered with visitation granted by a custody or visitation order, the court may, in addition to any other remedy available to the court and in a manner consistent with the best interests of the child, take any or all of the following actions: (1) order that the [missed] visitation be rescheduled; (2) modify the custody or visitation order to require additional terms or conditions designed to ensure future compliance with the order; and (3) assess costs or counsel fees against the party who has unjustifiably or interfered with visitation rights.” In practice, the non-custodial parent is often frustrated with the initial contempt process because the custodial parent more often than not receives a “slap on the wrist” from the Court. It is, however, a necessary step in order to build a case and to send a clear message to the custodial parent that the denial of visitation will not be tolerated. Ultimately, if the denial of child access continues, and subsequent Petitions for Contempt are filed and the allegations proven, the Courts, generally, take a more no-nonsense approach with the custodial parents and put more boundaries and restrictions upon the custodial parent to ensure compliance with the Court Order.
The second method of enforcing a visitation order is through a breach of contract action. If the custody or visitation order is memorialized as part of a settlement agreement, the parent may also bring a breach of contract action against the violating party. An experienced family law attorney will ensure that this second remedy is available to their client by incorporating, but not merging, any settlement agreement into the divorce Judgment or other Order of Court. In practice this avenue is often not explored.
The third avenue a parent may pursue in Maryland has arisen as the result of a controversial ruling in the Montgomery County Circuit Court. Marius Aydanian, a non-custodial father, sued his child’s mother, Antonina Aydanian, with a tort claim for damages after she interfered with his rights to visit his son. The court found that Antonina had substantially interfered with Marius’s right to visit the child, and the jury awarded him $23,000 in damages and attorney’s fees. In 2008, the Maryland Court of Appeals ruled in Khalifa et al. v. Shannon that a non custodial parent had the right to sue in tort when his wife abducted his children to Egypt. The Montgomery County Circuit Court’s ruling in Aydanian broadened the highest Court’s holding, allowing for tort damages in cases where the parent’s interference with visitation or custody does not amount to abduction.