No provisional visitation during family court proceedings

During Family Court legal proceedings, which can often take years, no provisional visitation or other access is granted between a child and the parent without physical possession of the child.  Because these proceedings are usually very lengthy, a “status quo” is typically established by the time they are completed.  This status quo, by default, is typically determined to be in the “best interests of the child,” even if it was achieved through child abduction, denial of access or other conduct on the part of one parent that would actually constitute criminal behavior in many other Convention States.  In any case, such behavior should be a clear indicator to authorities that the parent engaging in it may not be acting in the best interests of their child.

Solutions We Want To See

• Enact national laws requiring adequate visitation between a child and his or her non-custodial parent.  This should include visitation guidelines including but not limited to (i) minimum unsupervised visitation hours per week; (ii) weekly overnight stays; (iii) separate vacation time per year allowing overseas travel when one parent is not a Japanese citizen, subject to adequate protections to ensure return; and (iv) permissible conditions for denial of any of these guidelines.  These should be based on consultation of the many publicly available reference guidelines, such as these sample of child visitation guidelines.  Finally, the law should require that all judicial visitation determinations state specifically why the determination is “in the best interests” of the children it affects.

• Completely separate custody and visitation determinations from divorce, to prevent access to children from being used as a bargaining tool in divorce.

• Sanction lawyers who persist in recommending that their clients deny child visitation with the other parent as a bargaining chip in a divorce or tolerate this sort of behavior in their clients.

• Combine visitation proceedings with custody proceedings.  Require it to be standard practice that preliminary visitation rights are awarded immediately upon commencement and enforced throughout.  Absent special circumstances, a child should not go without seeing a parent for more than two weeks while proceedings are under way.  Whether the parties respect such rights must be a key factor in the ultimate custody award.

• Unless there is strong and verified evidence indicating abuse has taken place, as noted in Article 19 of the United Nations Convention on the Rights of the Child, courts should approve mandatory unsupervised visitation throughout a divorce or other custody or visitation related case. Even with strong and verified evidence, visitation in a supervised environment should be considered.

Articles

• TBD