Thursday, March 22, 2012

Child visitation prior to the Temporary Hearing

A question was put to me this morning.  Can a mother prevent a father from visitation with his own daughter before the hearing to establish a temporary placement arrangement?

My answer to the question was a hedged "No, but...". 

You see, after being served with process in a family action, the served party falls under the restrictions set forth in Wisconsin Statutes Sec 767.117 "Prohibited acts during pendency of action".  Namely, the served party may neither (a) restrain the liberty of any child of the marriage nor (b) conceal the child from the other parent.

The only two methods I can imagine for preventing the visit would be to hide the child or physically restrain the child.  Thus, if a visit were scheduled to take place after process has been served, then given the prohibitions outlined above, I cannot see any method available to the custodial parent that could prevent it from happening. 

But here's the rub.  If the custodial parent were to use a prohibited method to stop the visit, the wronged party could only bring an action for contempt against the custodial parent.  But, generally speaking, contempt hearings are not immediately scheduled and probably would not take place until after the temporary hearing was already concluded. At that point the issue would be moot.  Thus, in the pendency between the service of divorce petition and the commencement of a hearing that would establish a temporary child placement order, the prohibitions of 767.117 seem to have no teeth!

So, in short, my answer is that a mother may not technically prevent a father from enjoying visitation with his child, but if she tries to prohibit it, there are no immediately available effective enforcement mechanisms at the father's disposal.

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