Do You Have to Force Your Child to go for Visitation?

By Amy A. Edwards

The courts assume it is almost always in a child’s best interest to spend time with both parents, even if a child isn’t getting along with a parent. If there is no agreement, a parent can file a custody case and reach an agreement in custody mediation, or have the judge enter an order that will include a visitation schedule. This article applies to cases in which parents have a child custody order.  Cases that involve violence, substance abuse or serious dangers to children are outside of the scope of this article.

Enforcing Visitation Orders: Contempt

If the parent believes the other parent is willfully violating the order, he or she can file a motion to hold the other parent in civil or criminal contempt of court. Depending on circumstances, a judge has the authority to impose fines, make the other parent pay attorney’s fees, or in drastic cases, incarcerate the parent.  The key is whether the parent is intentionally violating the order, which requires an answer to the question of what is reasonable for a parent to do in those circumstances.

What is Willful Violation of the Order?

Judges decide whether parents intentionally violate orders on a case-by-case basis. In assessing the problem, consider whether there is a different reason for the friction. In the midst of a divorce or breakup between parents, a child might become estranged with a parent that he or she perceives did something bad. Sometimes, children play one parent against the other, taking advantage of the difficulty parents have in trying to co-parent. Parents who use the child to communicate between them not only put their child in the middle; they inadvertently set themselves up for this tactic.

A parent’s willful violation of an order is almost always shown by a pattern of behavior.  A few examples include failing to have a child packed and ready for visitation, not bringing a child back to the other parent as scheduled, intentionally scheduling other events during the other parent’s visitation, or “canceling” visits and making no effort to schedule make-up the time.  Most orders require that neither party speak badly about the other parent in front of the child. Discouraging the child from going with the other parent by doing that is also a willful violation.

What Are the Parent’s Obligations?

Frustratingly, North Carolina gives us no clear answers to the question of what a parent is expected to do when the child refuses to go with the other parent.  At a minimum, parents must communicate with each other about the problem to determine if they can figure out a remedy. If the case reaches the courtroom, the judge will expect both parents to honestly communicate with each other and make reasonable efforts to carry out visitation.  The younger the child, the more a parent will be expected to do. After all, it is difficult to stuff a 15-year-old into the car.  But the court would probably expect a parent to place a 4-year-old into the car.  Judges usually don’t think children should have the ability to dictate what they will and won’t do.  They do expect parents to act like parents.

What Should Parents Do?

My advice to parents is to observe the Golden Rule of Parenting, to do unto the other parent as you would have him or her do unto you. This requires you to look at the situation through the lens of the other parent.  When you are the parent who is favored by a child, ask why he or she is avoiding the other parent.  Is your son or daughter “busy” and just doesn’t want to be interrupted while playing X-Box at your house? Or perhaps there’s a serious problem with the relationship between a child and the new spouse. If the roles were reversed and the child didn’t want to see you, ask yourself what you would expect to be done about it. This is the best way to avoid (or be prepared for) being cross examined in the courtroom in a contempt trial. Parents should consider counseling for a child to help him or her deal with the root of the problem.

If the other parent isn’t blocking visitation but takes no action to promote visitation when the child refuses to go, he or she has another option besides contempt.  A motion to compel (i.e., force) visitation allows a judge to tighten up the terms of the order so there is no doubt about a parent’s specific obligations. Where an order says the exchange of the children is Friday afternoon, and one parent believes it is 3:30 after school and other thinks it means 6:00, a parent may file a motion to compel and a judge can clarify the terms of the visits.