Withdrawal of visitation?
The right of contact – or visitation rights – repeatedly leads to great difficulties for separated parents. Contact rights and custody are two different things. This is a common misunderstanding – the terms are often mixed up. Custody means the care and upbringing of the child, legal representation and administration of property. Contact right or visitation on the other hand, mean the right to personal contact between parents and children. The parent who does not live with the child in the same household should continue to participate in the children’s everyday life and not be forced into the role of an occasional visitor. Normally, regular and reliable contact with both parents will be in the best interests of the child. It takes the willingness of both parents to encourage contact with the other. The main caring parent must positively attune the child to contact with the other parent. In return, however, the separated parent must not use the contacts to negatively influence or instrumentalise the children against the main caring parent. What about the restriction of contact rights or the withdrawal of visitation?
How much visitation or contacts?
The question of what level of contact is best for the children, i.e. who looks after the children when and how often, is a difficult one. It is not helpful in cases of conflict that the more contact the separated parent has, the less child maintenance has to be paid. This often fuels the conflict on both sides because each parent assumes the other has financial motives. In the best case, the parents are able to agree on the exact form of personal contact. If a court has to decide, the focus is always on the best interests and needs of the child.
Again and again, people simply want a normal right of contact after a separation or what is prescribed by law. However, nothing is prescribed by law in this context. The law does not stipulate specific contact/visitation times. It is always about the specific family and the specific child. In general, the right of contact should include times of leisure as well as everyday life. It will also make a difference whether, for example, both parents were on maternity leave for the same length of time and took intensive care of the child, or whether one person took over childcare alone while the other was busy at work and perhaps spent a lot of time abroad. Even if the right of contact is not only a right of the child, but also a right of the (separated) parent, the interest of the child takes precedence. The best interests of the child are what counts when it comes to contact arrangements.
Restriction / withdrawal of the right of contact? or visitation
The right to contact between parents and child is a fundamental right. Restrictions on visitation must therefore be the exception. Nevertheless, the court has to restrict or even prohibit personal contact with the child if this is necessary. This is particularly the case if contact poses a risk to the child (e.g. due to violence) or if one parent does not observe the requirement of good conduct. In the meantime, the law explicitly mentions violence against an important caregiver of the child as a reason for restricting or withdrawing contact. The requirement of good conduct means that parents must refrain from anything that could disturb or impair the child’s relationship with the other parent in order to safeguard the best interests of the child. If, for example, a person humiliates, insults, shouts at or otherwise degrades the other parent when handing over the child, this would be a violation of this requirement of good conduct.
A complete withdrawal of the right of contact is only legally possible for serious reasons. Then, if the exercise of the right of contact could endanger the mental or physical health of the child. The mental and physical health of the child is correctly more important than the right to contact of one parent.
Furthermore, the complete withdrawal of contact rights is only permissible if all other less restrictive means (accompanied contacts, visiting mediators, etc.) that would allow contact rights to be exercised in the best interests of the child have already been exhausted. For example, in some cases it might be possible to carry out the contacts between child and parent as accompanied contacts, e.g. in a visiting cafe or in the presence of a suitable person with whom both parents agree.
The best interests of the child first
Sometimes, parents understandably find it difficult to separate the relationship level from the parenting level, especially after painful separations. It is important for children to experience that even after a separation it is still okay to love both parents and still keep them as important attachment figures. This legal obligation on the part of the parents to promote contact with the other parent has its limits, however, in the best interests of the child. If there is justified concern that the other parent could harm the mental or physical health of the child, the protection of the child naturally comes first.
This blog post was first published at der Standard.