A gut wrenching scenario in a coparenting relationship is when one parent believes that something unsettling or potentially dangerous is occurring while the child is at the other parent's home. What can you do once a child is old enough to actually convey what is happening at the other parent's home and those fears and concerns are confirmed? First, you will need to make sure the court will share your concerns.
A recent case decided by the Kentucky Court of Appeals dealt with the issue of restricting a father's timesharing with his daughter. In the case of Ryan v. Ryan, the mother moved to restrict the father's visitation based on allegations made by the parties' teenage daughter that the father smoked marijuana. The court entered an ex parte (without a hearing) order suspending the father's visitation until a full hearing could be conducted. The father immediately took a drug test showing that he had not smoked marijuana at the time the child was with him. However, a subsequent hair sample test showed traces of marijuana in his system from sometime within the past 12-14 months. The commissioner recommended resuming the father's visitation, but the court actually restricted his visitation and ordered it to be supervised. On appeal, the Court of Appeals reversed the trial court's decision finding that the court had abused its discretion in restricting the father's time with the child.
This case illustrates the fact that in order to restrict a parent's time with a child, there must be substantial and concerning evidence. Kentucky Revised Statutes 403.320(3) specifically states that "the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health." This is an objectively high standard to meet for the person trying to restrict the other parent's time. A further consideration is that another statute specifically states that "[t]he court shall not consider conduct of a proposed custodian that does not affect his relationship to the child." In the Ryan case, the Court of Appeals made a point of the evidence did not indicate that the father had ever used marijuana in the presence of the child (As a side note, with the trend of decriminalization of marijuana possession, judges seem to be less concerned about the mere fact a parent uses marijuana without proof that it is being used while the child is present.)
Situations that would certainly cause the court to believe a serious endangerment existed are abuse or neglect of the child, felony drug activity while the child is present, or mental illness and other conditions the parent may experience the prevent him/her from being able to care for the child.
Photo courtesy of angrylambie1Labels: custody, endangerment, restrict, time sharing, visitation
