It’s called vigilantism

Posted Friday, November 27th, 2015 by Gregory Forman
Filed under Jurisprudence, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Visitation

Of all of my blogs the one that has generated the most comments is Calling bullsh*t on custodial parents who let the children decide their visitation. Many of the comments come from non-custodial parents who believe they have been alienated from their children by the custodial parent. They applaud this blog. Many of the comments come from adult children or custodial parents who believe they or their child were forced into abusive visitation with the non-custodial parent because of court-ordered visitation. They hate this blog, thinking that it encourages visitation with abusive parents.

Buried near the end of that blog is the following language, which anticipated this blog’s critics but failed to adequately explain my views on the matter:

If the situation with the non-custodial parent gets bad enough, it should be the custodial parent’s obligation to seek an order reducing the other parent’s visitation, rather than simply denying visitation and expecting the court to not enforce its own orders.

I don’t think children should be forced to visit abusive parents. However it is often hard to determine whether a child is resistant to visitation because the non-custodial parent is abusive or because the custodial parent is alienating. Sometimes it is a bit of both: the custodial parent’s alienation and the non-custodial parent’s emotional abuse build off each other and the parents lack the ability to stop the cycle. When we allow the custodial parent to unilaterally decide whether to allow visitation despite a court order requiring it, we encourage vigilantism.

While folks might not think of custody orders as being “law,” court orders are a form of private law: creating legal obligations for the parties subject to that order’s terms. That is why contempt sanctions, including incarceration, can be utilized to enforce these orders. The dangers inherent in vigilantism–disrespect for the rule of law; favoring private violence over public force to enforce justice– exist when we allow or encourage parents to repeatedly violate court orders in the name of protecting “the best interests of the child.”

When parents cannot agree it is up to the courts, and not custodial parents, to decide whether visitation should go forward.

One thought on It’s called vigilantism

  1. California Observer says:

    I love it when you say things so clearly. I aspire to that in my fields, and it’s very rare. Hope it helps!

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