I am divorced from my children's mother. We have joint custody but I am the primary custodial parent. The problem is their mom doesn't always come get the kids on her weekend. Then she'll appear on a weekend that is not hers and want them. Do I have to let the children go if it is my weekend and she didn't come on hers? Also, my 12-year-old son doesn't want to go to his mother's house. If he's determined not to, do I have to force him into the car?
Any separation or divorce involving children will result in a custody order and visitation schedule. Parents can decide visitation on their own, or hire a mediator to help. In cases where parents can’t agree, a judge will decide visitation and custody based on the child’s best interests.
Your custody order will designate which parent(s) has legal and physical custody. Additionally, a custody order will set forth a visitation schedule that specifies where and when visits between each parent and the child should take place. For example, your custody order may order you to drop off the child at noon at 6:00 p.m. each Wednesday. Both parents are bound by the terms of a custody order. If your child refuses to go to visits with the other parent, you could still be on the hook for failing to comply with a custody order.
The legal answer may be “yes” even though the ethical answer could be “no” in some situations. Under the law, each parent must follow a custody order exactly. This means, you're obligated to make a child in your care available for visits with the other parent as laid out in the custody order.
A parent may have a different role in making visits happen for a four-year old child versus a 14 year-old one. A judge won’t be swayed by one parent’s argument that a toddler refused visitation. In that situation, a parent likely should have stayed in control and made the visit happen. However, obviously parents may have less control over a teenage child who is refusing visits.
In certain limited situations, it may even be unethical or illegal to send your child to visits if you have reason to believe they are being abused or harmed by your ex. However, if you suspect abuse you must do more than just prevent visits. It’s important to seek court intervention immediately.
A child custody order requires parents to make a child reasonably available for visits. Making a child reasonably available doesn’t mean that one parent has to force the visit or drag a child kicking and screaming from one car to the other. For example, your order may say that dad gets the child every Saturday morning with pick up at mom’s house. This doesn’t mean that mom is required to physically deliver the child to dad. If mom can’t get the teenage child to leave her bedroom, it’s probably not mom’s fault that the visit didn’t happen.
However, each parent has a duty to communicate to the other parent when the child is ill or otherwise unable to make a scheduled visit. A parent who communicates frequently and swiftly when a child is refusing visits will have a better outcome in court than the parent who fails explain the circumstances surrounding the child's refusal.
Although you should follow the terms of your custody order as closely as possible, there are circumstances where a visit may be impossible. An older teen may outright refuse visits and there’s not a lot that a parent can do. Yet, parents with younger children will need to play a more active role in ensuring that visits happen.
If you have an uncooperative child, you shouldn’t cede control to the child, but you should find out why your child is avoiding visits. Has something negative happened at the other parent’s home? Have there been major changes in one parent’s household and is this affecting the child’s attitude toward visitation. Is visitation between the parent and child new, and does the child need more time to transition into visits? Different circumstances will require different solutions, therefore it’s important to get to the heart of why your child is avoiding time with the other parent.
Additionally, when you’re dealing with a noncompliant child, you need to protect your child’s needs, but you’ll also need to protect yourself in court. Be sure to document each incident when your child avoids a visit and the circumstances surrounding your child’s refusal. You may have to testify about these matters in court. Also, you should contact your child’s other parent as soon as possible, and give the other parent the opportunity to talk with the child or suggest other strategies to help make the visit happen.
Parents are put in a tough situation when a child refuses visits. While it’s important to ensure your child’s safety, it’s also essential that you protect yourself. If you still have questions about visitation, contact a local family law attorney for advice.