USA Remedies for Children when Non-Resident Parents Abandon them after Separation or Divorce
International Family Law, June 2007

Marjory D Fields Attorney at Law, New York, USA; International Family Law Chambers, London

Children have a right to contact with both parents after parental separation. It is, therefore, the equal responsibility of both parents to comply with court orders and parental agreements for contact. However, we ignore fathers who fail to maintain contact with their children after separation or divorce. Instead, attention is focused on allegations that mothers violate agreements and court orders for contact by non-resident fathers.

The problem
Several empirical studies in the USA document the voluntary failure of post-divorce contact by non-resident fathers. Lenore J Weitzman, a US-based professor of sociology and law, found that non-resident fathers disengage from their children gradually after separation. Her research showed that 70% of men without custody would prefer to see their children less often than the frequency provided in their agreements or judgments (LJ Weitzman, The Divorce Revolution, (Free Press, 1985), at p 258).
A nationally representative sample of children in the USA between the ages of 11 and 16 found that after divorce:

(F Furstenberg, CW Nord, JL Peterson and N Zill, ‘The Life Course of Children of Divorce: Marital Disruption and Parental Contact’ (1983) 48 American Sociological Review 656, at pp 663–664.)
The authors summarised their findings stating that ‘the process of the fathers’ estrangement from their children begins soon after the marriage breaks up’. The rate of contact the drops ‘sharply’ after 12 months, and after 10 years, 64% of fathers had no contact with their children (Furstenberg et al, at p 664.)
A third study of residence and contact (called ‘custody and visitation’) following separation and divorce was conducted in California. The researchers interviewed parents from families in which divorce cases had been filed between September 1984 and March 1985. Initial interviews with 2,286 parents were conducted shortly after their divorce cases were started, one year later 1,124 of the parents were interviewed, and the final interviews 3 years after the divorces were started were conducted with 1,075 parents (E Maccoby and R Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody (Harvard University Press, 1992), at p 318. The study was conducted in two northern California counties where the mean earnings were higher than the rest of the USA. The sample was overwhelmingly white Anglo, and had much more college education than the USA (at pp 316–317). The authors found that by the third year, in the 45% of the families in which the children were in the primary care of their mothers, two-thirds of the fathers decreased contact with their children, although one-third of the fathers had increased contact with their children (at pp 197–199.) In joint legal custody cases, fathers were no more likely to pay child support, keep in contact with the children, or communicate with the mothers regarding decisions concerning the children than were the fathers without legal custody (at p 377). ‘Rates of visitation with mothers among father-resident families, increased’ (at p 197, and fig 8.4 at p 171).
We ignore also non-resident mothers. One study discussing non-resident mothers found that they maintained contact with their children. This study of post-divorce contact conducted in the USA found that 86% of children saw their non-custodial mothers in the year prior to the study and 31% of the children saw their non-custodial mothers weekly in that same period (Furstenberg et al, at p 666).

The Children Act 1989
The overarching principle in the Children Act 1989 (the Act) of England and Wales is stated in Part I, s1(1):

‘When a court determines any question with respect to— (a) the upbringing of a child … the child’s welfare shall be the court’s paramount consideration.’

By contrast, in the USA, a country which is not a States Party to the United Nations Convention on the Rights of the Child 1989, the highest court in New York State held that, ‘Visitation is a joint right of the non custodial parent and of the child’ (Weiss v Weiss 52 NY2d 170, 174 (1981).
Section 8 (1) of the Act provides further that:

‘“a contact order” means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.’

There is no provision in the Act requiring compliance with the schedule of visits by ‘the person named in the order’.
When making any s 8 order with respect to residence and contact, ‘the court shall have regard in particular to (a) the ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding)’. Thus, the child’s welfare and wishes have priority over rights and wishes of parties seeking contact and residence. The Court of Appeal held in two recent residence cases that the trial judges’ determinations could not stand because they gave insufficient regard to the wishes of the children(Law v Knight [2005] EWCA Civ 918, [2005] All ER (D) 05 (Jul); Re R (Residence: Shared Care: Children's Views) [2005] EWCA Civ 542, [2006] 1 FLR 491).

Government reports
The UK Government reports concerning enforcement of court orders for contact by non-resident parents focus exclusively on the bad conduct of parents with residence. (Parental Separation: Children’s Needs and Parents’ Responsibilities: Next Steps, Report of the responses to consultation and agenda for action, Cm 6452 (HMSO, 2005); Parental Separation: Children’s Needs and Parents’ Responsibilities, Cm 6273 (HMSO, 2004); and Making Contact Work (Lord Chancellor’s Department, 2002).
The single comment regarding responsibilities of non-resident parents is not in the body of any report. The Ministerial Foreword to the 2005 report states, ‘Equally, it should be unacceptable that non-resident parents absent themselves from their child’s development and upbringing following separation’.
The problem of fathers who cease contact is trivialised by this fleeting aside. This issue is ignored in the reports. The Government’s recommendations respond to the court cases in which contact enforcement is sought by fathers against mothers, (J Edwards, ‘Enforcement of contact orders – a new era?’ [2006] Fam Law 125) and the publicity campaigns by non-resident fathers asserting judicial bias against them and wrongful denial of court-ordered contact (C Barton, ‘Pressure groups and family law – what will the men want next?’ [2006] Fam Law 202).
Decisions concerning leave to remove provide remedies for the aggrieved left-behind, non-resident fathers (T Hanson, ‘Relocation applications: recent developments in the Channel Islands’ [2006] Fam Law 370). No decisions consider the injuries to the left-behind children and resident parents when non-resident parents move to Dubai for business opportunities or income tax avoidance, or to Australia with their new wives (Celle Higher Regional Court, case 19 UF 253/00 (21 November 2000)).
Following consideration of the responses to the 2004 consultation paper, in 2005 the Government published Parental Separation: Children’s Needs and Parents’ Responsibilities: Next Steps, Report of the responses to consultation and agenda for action. In this document, the Government state their plan to draft a bill to create additional enforcement powers. These new powers will allow:

Four of these proposed enforcement powers could apply to both resident and non-resident parents. There is, however, no suggestion in these three comprehensive reports that remedies should be available to compel non-resident parents to exercise contact, or to compensate their abandoned children and the resident parents for emotional and financial losses caused by the non-resident parents’ failure to maintain contact.
The sole enforcement remedy directed to non-resident parents is the ‘Referral of a non-resident parent who has been violent or who has breached an order to a relevant programme’. Sadly, this response is insufficient. It minimises parental violence as though it were the same as not feeding children cooked breakfasts, to be remedied by cooking classes.
Furthermore, there is no empirical evidence supporting the efficacy of information or counselling meetings or parenting programmes or programmes for domestic abuse offenders. Rather, two studies conducted in the USA funded by the Department of Justice, National Institute of Justice, show that domestic violence offender programmes have zero effect (S Jackson, L Feder et al, ‘Batterer Intervention Programs Where Do We Go From Here?’ (US Department of Justice, 2003); Center for Court Innovation, New York, ‘Testing the Effectiveness of Batterer Programs and Judicial Monitoring’ (US Department of Justice, 2005)).
More appropriately, non-resident parents who have been violent or have breached the restrictive terms of contact orders should have their contact suspended or supervised until they can satisfy the court that they no longer pose risks of violence to their children or the resident parents. This response is necessary to protect children and their resident parents from harm. Scholarly research shows that violent spouses who violate court orders are risks for committing further violence and homicide (JC Campbell (ed), Assessing Dangerousness: Violence by Sexual Offenders, Batterers and Child Abusers (Sage, 1994); J Roehl and K Guertin, Current Use of Dangerousness Assessments in Sentencing Domestic Violence Offenders: Final Report (Justice Research Center, 1998)).
The other proposed statutory remedies are intended to curb ‘obdurate mothers’ (V v V (Contact: Implacable Hostility) [2004] EWHC 1215 (Fam), [2004] 2 FLR 851) who interfere with contact, to use the words of the courts. No mention is made of the equal responsibility for non-resident parents to remain in proximity to their children to exercise the court-ordered contact, shared residence or joint custody which they demanded in prior court proceedings or settlement negotiations. Yet, relocation by non-resident parents creates the same distance barriers to contact created when resident parents relocate.
In the Government reports no consideration is given to the children’s perceptions of their fathers, apart from the assumption that their mothers have manipulated them to reject their fathers. In a study of 117 British children and adults aged from 4 to 22 whose parents had divorced, the authors found that the children had their own perceptions of their parents, independent of their mothers’ views. The children were not manipulated by their mothers (C Smart, B Neale and A Wade, The Changing Experience of Childhood, Families and Divorce (Polity Press, 2001), at pp 142–156). In addition, the researchers found that the mothers made efforts to maintain positive relationships between the children and their fathers despite the fathers’ broken promises and lies (C Smart and B Neale, Family Fragments? (Blackwell Publishers, 1999) at pp 95–111).
The House of Commons Constitutional Affairs Select Committee heard judicial experts on the subject of private law child access disputes on 2 May 2006. Gwynn Davis summarised the substance of the remarks by Sir Mark Potter, President of the Family Division, Mr Justice Munby, District Judge Nicholas Crichton and Audrey Damazer of the Justices’ Clerks Society (G Davis, ‘The Things We Say’, [2006] Fam Law Vol 961). None of the speakers or the MPs who questioned them are reported to have mentioned the problem of non-resident parents abandoning their children after divorce or the need for remedies for abandoned children and their resident parents.

Limiting relocation by resident parents
In the USA, state statutes and case-law set forth standards that resident parents must satisfy if the court is to grant them permission to relocate away from the geographical area where the non-resident parents reside (LD Elrod, ‘States Differ on Relocation’ (2006) 28(4) Family Advocate 8, chart of state relocation laws at pp 10–11). There are, however, neither statutory provisions nor court decisions restricting relocation by non-resident parents. There is no case-law because there are no remedies for the left behind children (P Parkinson, ‘Family law and the indissolubility of parenthood’ (2006) 40(2) Family Law Quarterly 237, at pp 247, 254–65; CS Bruch, ‘Sound Research or Wishful Thinking in Child Custody Cases? Lessons from Relocation Law’ (2006) 40(2) Family Law Quarterly 281, at pp 283–285).
The only case-law concerning abandonment of children by non-resident fathers addresses the rights of their out-of-wedlock fathers, or putative fathers. The cases arise in the contexts of the fathers’ rights to withhold consent to adoption of newborn children and their standing to intervene in termination of parental rights cases following child abuse or neglect proceedings (L Oren, ‘Thwarted Fathers or Pop-Up Pops? How to Determine When Putative Fathers Can Block the Adoption of Their Newborn Children’ (2007) 40(2) Family Law Quarterly 153).
Critics of restrictions on the right of resident parents to relocate with their children assert that the restrictions limit the freedom of women since they are most often the resident parents (Bruch, at pp 292–294; Parkinson, at pp 254–265). None of the critics, however, suggest imposing equal restrictions on the right of non-resident parents to relocate. Restrictions on both parents would benefit children by keeping them close for consistent contact. This change would also remove the gender bias issue from the discussion.

Model parenting plans
Model parenting plans, when they contain clauses addressing the failure of contact, have anaemic provisions. The model parenting plan published by the UK Government makes a single reference to missed visits: ‘If a visit needs to be postponed … how will another visit be organised?’ (‘Parenting Plan’ Community Legal Service Leaflet, p 7, available at: www.dfes.gov.uk/childrenandfamilies). The section addressing ‘Changes’ mentions moving home and a new job, but omits failure to visit or increased burdens on resident parents when non-resident parents discontinue the agreed schedule of visits. A ‘Money Checklist’ neglects the increased expenses incurred by resident parents when non-resident parents decrease contact (at p 17).
The Shared Parenting Information Group (SPIG) UK recommends provisions for a parenting plan (available at www.spig.clara.net/p-plans). It begins with a statement of ‘Purpose and Intent … The children’s interests are best served by a full and regular pattern of contact with both parents’. Specific clauses include:

‘The father [non-resident parent] shall exercise the residential time permitted by this plan on a consistent basis, which shall be defined as exercising at least 75% of the residential privileges permitted by this plan.’

There is no provision for the non-resident parent to arrange or pay for extra child care during the 25% of the residential privileges he misses. Finally, there is a clause addressing ‘Moving the primary residence of the child’, which restricts the resident parent from moving more than 100 miles from the non-resident parent’s home. No mention, however, is made of moves by the non-resident parent or for the same distance restriction to be imposed on the non-resident parent’s relocation.
The American Academy of Matrimonial Lawyers publishes a ‘Model for A Parenting Plan’. Section 6.6 contains provisions for ‘Schedule Changes’. It has clauses placing responsibility for extraordinary child care and transportation expenses resulting from schedule changes on the parent who requests or makes the schedule change (at 18). These clauses appear to be based on the assumption that schedule changes would be infrequent and communicated in advance. There is no provision for recalculating maintenance or imposing penalties when there is persistent failure to make scheduled visits.

Children need both parents after divorce
It is asserted by those who advocate shared parenting after divorce that children need frequent contact with their non-resident fathers (Bruch, at pp 296–297; SPIG statement of purpose and intent). Australia, for this reason, enacted a presumption of equal shared parental responsibility and encourages advisers and mediators to recommend that parents ‘consider equal time with both parents’ in their parenting plans (Parliament of the Commonwealth of Australia, House of Representatives Standing Committee on Family and Community Services, Report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005, at pp xiii, xiv, 22). Despite this, the Australia Family Law Act restricts relocation by resident parents, but fails to impose restrictions on relocation by non-resident parents (Dissent Report of Nicola Roxon, MP, at p 215). As pointed out by the Family Law Section of the Law Council of Australia:

‘[T]here is no recommendation for legislation requiring non-residence parents to prove that they should be allowed to relocate away from their child.’ (letter of Ian Kennedy AM, Chairman of the Family Law Section to the Attorney General, 13 September 2005, at 2)

Equal parenting time or frequent contact and involvement in child care, school, arts, sports, and leisure activities require that non-resident parents reside close to their children. Thus, the argument used against relocation by resident parents applies equally to relocation by non-resident parents. To argue otherwise suggests that equal parental time demands are to benefit the interests of non-resident parents and are not for the wellbeing of the children.

Legal remedies for abandoned children
The harm to children caused when their non-resident parents abandon them demands recognition. Statutory remedies should be enacted to compensate children for their emotional losses and reduced standards of living resulting from the failure of non-resident parents to maintain shared parenting time and contact schedules. In addition to depriving children of one of their parents, failure to exercise scheduled contact increases the child care, food, education, extracurricular activities, entertainment, and transportation expenses of resident parents. The child maintenance formula, therefore,

should be amended to add failure to maintain contact as a change of circumstances for increasing the payments by non-resident parents. The standard for increasing maintenance should specify a time period or the number of scheduled contacts missed, including late pick up and early return of children.
Resident parents may suffer lost income and business and employment opportunities scheduled to coincide with periods when children should have been with their non-resident parents. These losses should have statutory remedies. If there were statutory remedies and standard provisions in court orders and agreements, non-resident parents would be discouraged from failing to maintain contact and abandoned children and their resident parents would have clear bases for seeking relief. Written separation agreements, residence and divorce settlement agreements, parenting plans, and court orders should contain clauses:

A liquidated damages clause would be a disincentive for non-resident parents to cease or reduce contact. In addition, it would eliminate the need to prove actual damages from increased expenses with lots of little receipts for cinema tickets, baby sitters, and sports activities. Despite the absence of statutory remedies or provisions in agreements or court orders, abandoned children and their resident parents may bring contempt proceedings and damage actions against non-resident parents who breach contact orders and written agreements, respectively. Children may seek damages based on emotional distress from loss of parental society and diminished standards of living. Resident parents have a cause of action for modification of child maintenance orders and agreements based on increased child maintenance expenses.
There is support for legal remedies in the Government reports discussed above, which recommend ‘financial compensation’ for damages to be paid by resident parents who interfere with contact. The same compensation should be available to children and their resident parents from non-resident parents who fail to maintain their contact schedules. These responses place the rights and needs of the children paramount, as required by the Children Act 1989.

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