Is your former spouse preventing you from seeing your children?
The custodial parent is obliged to comply with the judge’s order establishing visitation of the minor children with the other parent. Dangerous rivalry mechanisms are triggered in the context of stormy separations and divorces, which find their outlet in the children, a kind of transversal revenge. A revenge, however, that ends up affecting the emotional and psychic stability of minors, creating not insignificant damage. That is why the law provides for not only civil but also criminal liability for conduct of this kind.
Even when it is a question of punishing the parent who does not respect the judge’s orders, the judge, in taking the consequent measures, must always pursue the priority interest of the minor child. That is why, even if the law allows the magistrate to remove the child from the residence of the non-compliant parent, such a choice must be carefully assessed; that is to say, the will of the child must be taken into account, who might react negatively to the transfer and to the imposition of going to live with a parent towards whom he or she harbours hatred (even if induced by the other parent).
Still under a civil law aspect, the parent who obstructs the child’s visits with the other parent could lose not only the child’s placement, but also his or her custody, i.e. the power to decide on matters relating to his or her upbringing, education, health, and growth.
A judge who finds that the schedule of visits between the child and the non-placement parent has been violated may order the other parent to pay an administrative fine. This is a punitive measure: the amount goes to the State and not to the parent who is the victim of the conduct.
The parent who prevents visitation may be sentenced to pay damages to both the child – deprived of his or her right to bigenitorial status – and the former spouse or cohabiting partner; he or she also risks one to three years’ imprisonment, often without parole, if he or she detains the child by preventing the other parent from seeing him or her for a prolonged period, two weeks being enough.
In these cases, there is not only a violation of the court order but also the more serious offence of child abduction.
The offence is on complaint. Often, a mere indictment of the abducting parent is sufficient to lose custody of the child and also parental authority.
VGS Lawyers is a firm specialised in Child Custody’s matters.
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