When a child of divorce no longer wants to follow an existing visitation schedule, how does that impact custody orders?
As an initial matter, custody orders are enforced until the child turns 18 unless your order states otherwise. While the order may have worked well at the time it was entered, it’s very possible that someone has since moved, changed jobs, chosen a different school, or even had relationships deteriorate as their children grow. Typically, you must file a modification action to get your current custody schedule changed, unless both parents agree to exercise something different.
Under this rule, we receive a lot of client questions about being able to make unilateral decisions to not enforce the custody order when the child no longer wants to follow the visitation schedule. As in most situations, it depends, below are eight different hypothetical situations that arise under this request if a child doesn’t wish to attend a visitation.
Hypothetical #1
My daughter is 17 years old. The custody order says she has to see her dad every other weekend. Isn’t she old enough to decide when she sees him?
While a child’s age is a factor in an original custody consideration, it is not something that can be amended without further court order if you have a visitation schedule in place. A child is considered a minor until he or she reaches the age of 18 years old. Thus, a 17-year-old would need to attend the every other weekend visitation as set forth by the court unless otherwise agreed by the parents, but for limited circumstances. Speaking with an attorney would help everyone understand the reason she doesn’t want to attend and see if there are options to adjust temporarily.
Hypothetical #2
My child’s mom has been placing the child in the middle of us by talking poorly of me when she is in her home, so she no longer wants to go to her house. Can she just stay with me instead of following the custody order?
While the child’s mom may have a contempt action that could be filed against her for placing the child in the middle, if you allow your child not to go to her home, you risk having a contempt proceeding brought against you for failing to abide by the court’s order. A parent has an obligation to encourage the child to attend visitation, just short of physically forcing them to go. If a contempt action were filed, the mom attempting to enforce visitation would need to show that you allowed the child not to go.
Hypothetical #3
My ex-spouse agreed that our 16-year-old doesn’t need to follow the custody order, but our eight-year-old still does. The eight-year-old wants to be able to do what the 16-year-old is doing. Based on the agreement with the older child, can I enforce that the eight-year-old doesn’t need to go if he doesn’t want to?
The Courts typically allow the parents to agree outside of a court order on where the children can or cannot be. However, if parents cannot agree, that is when they are to resort back to the court’s order. If the parties cannot agree on where their eight-year-old child goes, even if they agree on the 16-year-old child, the parents must follow the court’s order with regard to the eight-year-old.
Hypothetical #4
My child is harming herself when she goes to her mom’s house. Do I have to encourage her to go?
This is a tough one because the courts are always going to rule in what is in the best interest of the child but must still follow the law. In this instance, the father should not just tell the daughter she doesn’t need to go. Instead, this should be addressed with the mother first, as to her knowledge of the child’s harm and the parents together should try to resolve why the child is self-harming at mom’s house. If the mom is not receptive that these issues are occurring in her care or is not open to resolving them, then that may help the father in filing for a custody modification action of the child and certain parameters on visitation with the mom.
Hypothetical #5
Can I file an emergency motion to change custody? My child doesn’t want to go to visitation, and I don’t want to force him to go.
Courts will only modify custody orders that are already in place on an emergency motion or motion for temporary matters hearing for very limited circumstances. The default answer is that a court will not modify a custody decree unless and until a trial on a modification action is set. However, there are limited circumstances where a court may modify custody, such as if a parent is physically unavailable. An attorney could help assist when a custody order may be able to be modified in advance of a trial on a modification action.
Hypothetical #6
My ex is physically abusing my child. Do I have to force him to go to his dad’s house?
In this situation, a court would likely understand that visitation is not going to be followed if it harms the child and may be withheld until visitation can occur safely. If a parent disagrees that abuse is occurring in their home, that is grounds for a contempt action to be filed to enforce visitation. If the abusive parent filed a contempt action, they would need to answer for their actions or prove that the abuse was not occurring in their home if the other parent was able to bring evidence to the contrary. This is a difficult situation that should be addressed with an attorney to help address this situation as soon as possible.
Hypothetical #7
My ex-husband cheated on me. My children are aware that he cheated and now they do not want to go to his house and see his new girlfriend. I don’t think they should have to go either because what he did was so wrong.
In this situation, a contempt action could be filed against the mom on a couple of different issues, including failure to enforce visitation and placing the children in the middle. While it may not have been the mom’s fault that the children became aware of the reason for the family divide, she has reinforced with the children that it’s okay to not have a relationship with their father. Speak with an attorney to better understand the reluctance and how best to navigate this situation. The level of hurt may warrant a professional to become involved to ease back into visitation instead of forcing the prior schedule.
Hypothetical #8
I drive over to my ex’s house for visits, and my children never come out of the house. My ex won’t allow me in the house. What are my options?
This is a unique situation where the parent who cannot get the children out the front door and into the other parent’s vehicle has to teeter on the line of physically forcing them to go. At a minimum, the parent should make the children available for discussion with the other parent at the front door, but that may be difficult in some situations. The parent who has encouraged the children to go should make the phone available and allow open communication to allow the other parent to attempt to mend the situation, with encouragement of the other parent. These situations can escalate to trespassing and other issues, so speaking with an attorney will help you understand your rights when appearing for your visit and how to best enforce the court’s order.
Bottom Line
As highlighted above, each circumstance is dependent on the specific family dynamic and may provide a different answer after speaking with an attorney or after appearing in front of a judge, based on the set of facts provided.
In general, parents should default to encouraging the child(ren) to attend visitation and get a better understanding of their reluctance. With your understanding, if possible, try to address the issue with the other parent, without the child present, or if both parents determine it could be beneficial, with the child.
If professional help may resolve the divide, encourage the parents to seek help. Often individual or group therapy sessions help families mend a divide and facilitate visitation to begin again. If none of these are successful and the parents cannot agree to a resolution, speak with a family law attorney about the likelihood of success in a modification and/or contempt actions.
