April 6, 2025
When Can a Court Give the Court’s Authority to Determine a Child’s Best interests to Someone Else?
The answer isn’t as straightforward as one might think.
A custody or visitation order is an order until changed or “modified” by a court. Even when parents agree to a change, it isn’t official, recognized by the court or enforceable by the court until approved by a court. Period. The policy here is that the Court has the responsibility and authority to determine what is in a child’s best interests.
But what about the situation where the custody order has some flexibility built in? For example, if one parent has the right to affect the other’s access to a child without first returning to court for a new order. After all, children grow and their needs change. Parents remarry, experience job and health changes. Life goes on for everyone after the initial custody order so flexibility can be a good thing.
But when has a court impermissibly gone too far by “delegating” it’s responsibility to determine a child’s best interest to a parent or someone else? Again, the answer isn’t as straightforward as one might think. And the courts may not always seem as consistent as one might think.
Consider, the recent Supreme Court decision in R.H. v. M.H., SC 20882. Dad had custody with Mom having first supervised and subsequently unsupervised visitation. The custody order gave Dad the right to “suspend Mother’s visitation or reinstate the requirement of supervision” if after consulting with the child’s therapist he felt the unsupervised visits were hurting the child. Based on this order, Dad suspended Mom’s unsupervised visits. Mom challenged Dad’s actions in court and the case ultimately went to the Supreme Court. The Supreme Court determined that Mom was correct. The initial court order “is an improper delegation of authority because the court effectively delegated to Father, the authority to suspend or terminate Mother’s visitation.”
At first, the Supreme Court decision seems understandable. But it gets confusing when the written opinion differentiates this case from prior cases. For example, the Supreme Court referenced a 2022 case in which a custody order permitting a dad to “alter, change or modify” the mom’s visitation schedule did not constitute impermissible delegation. And a 2018 case where the custody order granting the teenage children control over the dad’s parenting time was not an improper delegation.
Consult with your family lawyer for further explanation and guidance about this difficult issue.
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