Unjustified Denial of Access by One Parent: Is Make-Up Time Required

The Maryland legislature has provided specific remedies that a parent can request when the other parent is unjustifiably denying court-ordered access with their minor child. In Maryland Family Law article, Section 9-105, the law provides that in a custody or visitation proceeding, if the court determines that a party to a custody or visitation order has unjustifiably denied or interfered with visitation granted by a custody or visitation order, the court may, in addition to any other remedy available to the court and in a manner consistent with the best interests of the child, take any or all of the following actions: (1) order that the visitation be rescheduled; (2) modify the custody or visitation order to require additional terms or conditions designed to ensure future compliance with the order; or (3) assess costs or counsel fees against the party who has unjustifiably denied or interfered with visitation rights. See Md. Fam. 9-105.

However, if you are unjustifiably denied access, is a court required to provide you with make-up time if you ask for it? That was one of the subjects before the Maryland Court of Special Appeals in an opinion published on July 28, 2021. See Alexander v. Alexander, No. 1320 (2020). In this case, it was undisputed that Mother intentionally withheld visitation from Father for about two months. Id. The circuit court Judge had denied Father’s request for make-up time, claiming that it would not be in the minor child’s best interest. The Maryland appellate court found that the circuit court Judge’s ruling was consistent with Maryland law and the decision was affirmed. The Court of Special Appeals explained:

"The statute simply gives the court the option of ordering make-up time, but the court is not required to exercise that option. In fact, the statute provides that in order to exercise the option, such an award must be 'consistent with the best interests of the child[.]..." Id.

In sum, a party is not afforded the right to make-up visitation if the other parent unjustifiably denies access pursuant to a court order. There are remedies that a party can ask for, but they are not mandatory. As the appellate court reminds us, like in many other aspects of a custody case, an analysis of the best interests of the child typically is paramount.