Debra A. Clement is a member of the class of 1998 Hofstra University School of Law. She received her B.A. from Adelphi University in 1994.

SUPERVISED VISITATION: AN EQUITABLE REMEDY

Barring voluntary abandonment of parental rights, visitation cannot be completely foreclosed unless there is clear and convincing evidence that visitation will endanger a child's physical, mental, or emotional health. [FN26] However, courts are frequently confronted by circumstances that do not justify termination of all contact with a parent yet present legitimate concerns regarding the health and safety of the child or the other parent.

Situations involving domestic violence and child abuse challenge the courts to achieve a balance between protecting the parent-child relationship and ensuring the safety of children and the battered parent. Since the highest risk of violence is the period immediately after an abused woman ends the relationship--and the exchange of children for visitation provides a batterer with access to his former partner--it is critical that the exchange of children for visitation occurs in a protected environment. [FN27] Also, many allegations of sexual abuse arise during divorce proceedings and involve children between two and four years of age. [FN28] When confronted with such allegations, the court *297 must fashion visitation arrangements that address the visitation rights of the parent and the safety of the child. However, since preschool-age children are usually not articulate and physical evidence of sexual molestation is generally not present, [FN29] investigations often yield inconclusive results. Consequently, even after an investigation is concluded, courts may still be faced with the task of creating a visitation arrangement that will foster the parent-child relationship while protecting young children until they are capable of expressing themselves.

Supervised visitation provides an equitable remedy to such situations because it serves the dual purpose of preserving the constitutionally protected [FN30] and emotionally vital parent-child relationship while protecting the child and, sometimes, the other parent from harm. "Supervised visitation is contact between a child and adult(s), usually a parent, that takes place in the presence of a third person who is responsible for ensuring the safety of those involved." [FN31] The court may permit the parties to select a neutral individual to supervise visitation, or it may direct visitation to take place in a supervised visitation program. [FN32]

Provided the child is protected from physical or psychological harm, it can be in the child's best interest to have ongoing visitation even in cases where a parent is violent. Divorce research literature strongly indicates that children do better over time when they have access to both parents. [FN33] Since many abusive parents can also be quite loving, there can be substantial benefits from the affection if children are able to visit with a parent without risk of harm. [FN34] Because children often equate parental violence with rejection, positive interactions serve to foster a child's self-esteem because they provide reassurance of parental love. [FN35] Furthermore, children who have little contact with a violent parent tend to repress memories of violent incidents and idealize the parent. [FN36] Longing for contact, they often blame themselves or the other parent for the violent parent's absence. [FN37] Therefore, visitation is also important even if the parent has few redeeming qualities because it will decrease the child's propensity to develop an idealized image of that parent. [FN38]

In many instances, supervised visitation is the only intermediary that prevents a total preclusion of visitation between parents and children. For some parents, supervised visitation offers one last chance to make amends and rebuild a healthy relationship with their children. And, in those unfortunate instances where the parent is so incapable of sustaining a healthy relationship with the child as to warrant suspension of visitation privileges, the court, having provided the parent with every opportunity, is able to terminate visitation with a clear conscience.

*298 PRIVATE ARRANGEMENTS VERSUS STRUCTURED PROGRAMS

When courts permit supervised visitation to be provided by an individual the parties select, it is frequently not implemented because it is impractical for the parents to find a neutral third party to supervise the visits. [FN39] Often, they cannot agree on a particular individual, who is usually a friend or relative, because of conflicting opinions regarding issues of trust and bias. [FN40] If they do agree, visitation is dependent on the willingness of the selected party to accept this role, and if the neutral party is willing, it is further dependent on the party's availability.

Private supervision arrangements are also undermined because friends and relatives lack professional training. Consequently, they may be subject to threats and intimidation. Furthermore, their presence may not be adequate to deter parental abduction. "According to a study by the U.S. Department of Justice, as many as 354,100 children are abducted each year by family members, with 163,000 of these cases involving concealment of the child, transportation of the child out of state or intention to keep the child permanently." [FN41]

In contrast to private supervision arrangements, participation in a supervised visitation program usually takes place in a confined setting where the presence of professional security substantially diminishes any possible opportunity for abduction. [FN42] The parents' arrival and departure times are usually staggered to preclude contact between them, [FN43] and the presence of security also serves to reduce the potential for violent eruptions.

Participants in supervised visitation programs are usually referred by court order. The majority of programs provide on-site supervision where visits take place in a cheerfully decorated room that contains toys and games. Supervised visitation programs provide the parent-child relationship with a consistently neutral setting where wrongly accused parents have no need to fear subsequent false allegations, and contact can take place on an uninterrupted basis. During the visit, supervisors remain in close proximity and observe the parent-child interaction. [FN44] They play a passive role and do not interfere unless the child is in distress or a program rule is violated. All parents are prohibited against whispering to the child, making negative comments about the custodial parent or the child's extended family, or forcing any physical contact with the child. Since supervisors are professionally trained monitors, there is also less likelihood that they will be intimidated by the threats or demands of a visiting parent.

*299 Supervised visitation programs are not without their limitations. To effectively protect children who may be at serious risk, these programs must, by necessity, deny families privacy. Children often feel uncomfortable when they are being watched by the supervisor; as a result, their interaction with their parent is inhibited. [FN45] Furthermore, the majority of parents, as well as many children, do not like being restricted to the location for visits. [FN46] At supervised visitation programs, the parent- child interaction is limited to conversation and the toys and activities that are present at the center, and the most common complaint among children is boredom because the program lacks sufficient toys or activities. [FN47] In particular, children older than seven years of age often complain that the toys and games are only appropriate for younger children. [FN48]

In addition to on-site supervision, some programs offer monitored child exchange, parent education classes, telephone monitoring, off-site visitation, and individual or family therapy. [FN49] Although the services provided by supervised visitation programs vary, virtually all programs provide some form of documentation of parent-child contacts. [FN50] Following each service, the supervisor records a detailed entry into the child's file describing the parent-child interaction. [FN51] The records and testimony of visitation supervisors can be helpful in evaluating why a child is adamantly against visitation with a parent. [FN52] They are also extremely valuable evidence should either parent petition for modification of visitation. The availability of objective reporting provides the court with sound information on which to consider and decide this crucial issue. Consequently, supervisors from these programs are frequently called in to testify during judicial hearings.

[FN26]. Developments in the Law--Battered Women and Child Custody Decisionmaking, 106 HARVARD L. REV. 1597, 1608 (1993).

[FN27]. Robert B. Straus, Supervised Visitation and Family Violence, 29 FAM. L.Q. 229, 232 (1995).

[FN28]. MACFARLANE, supra note 12.

[FN29]. Id. at 4.

[FN30]. See Susan Beth Jacobs, Note and Comment, The Hidden Gender Bias Behind "The Best Interest of the Child" Standard in Custody Decisions, 13 GA. ST. U. L. REV. (1997).

[FN31]. Straus, supra note 27, at 229.

[FN32]. Tortorella, supra note 15, at 214.

[FN33]. Phyllis E. Federico and Robert Kinscherff, Custody of Vaughn: Impact of Domestic Violence on Child Custody: Children Are No Longer the Forgotten Victims, 40 B. B.J. 8, 21 (1996).

[FN34]. WILLIAM F. HODGES, INTERVENTIONS FOR CHILDREN OF DIVORCE, CUSTODY, ACCESS & PSYCHOTHERAPY (2d ed. 1991).

[FN35]. Id.

[FN36]. JANET R. JOHNSTON, PH.D., VIVIENNE ROSEBY, PH.D., IN THE NAME OF THE CHILD (1997).

[FN37]. Id.

[FN38]. JAMES C. BLACK and DONALD J. CANTOR, CHILD CUSTODY (1989).

[FN39]. Judge Bonnie S. Newton, Visitation Centers: A Solution Without Critics, 71 FLA. B.J. 54, 55 (1997).

[FN40]. Robert B. Straus and Eve Alda, Supervised Access: The Evolution of a Social Service, 32 FAM. & CONCILIATION CTS. REV. 230 (1994).

[FN41]. Donovan Webster, Alicia, Underground, MEN'S HEALTH Oct. 1, 1995, available in 1995 WL 12396864.

[FN42]. Straus, supra note 27, at 234.

[FN43]. Id.

[FN44]. Id.

[FN45]. Jennifer M. Jenkins et al., An Evaluation of Supervised Access II, Perspectives of Parents and Children, 35 FAM. & CONCILIATION CTS. REV. 1 (1997).

[FN46]. Id.

[FN47]. Id.

[FN48]. Id.

[FN49]. Straus, supra note 27, at 234.

[FN50]. Id. at 234.

[FN51]. Id. at 235.

[FN52]. HODGES, supra note 34.