When I first started practicing family law I would encounter a number of visitation enforcement hearings in which the custodial parent tried to excuse his or her failure to have the children visit with the other parent because “the children didn’t want to.” Occasionally, and much to my frustration, the judges would sometimes accept this excuse and not find the custodial parent in contempt. Early in my career I didn’t have an effective counter to these parents’ claims other than to hope the judge would enforce the order rather than buy the custodial parent’s excuse. It has been my more recent experience that, absent evidence of abuse, the court doesn’t accept these excuses as frequently.
However, in the interim, I have developed what I believe is an effective cross examination technique for a custodial parent who testifies that he or she won’t force the children to visit the other parent because the children don’t want to. I ask them what other things they expect their children to do that they don’t require them to do when they don’t want to. Can the children refuse to do their chores/eat their vegetables/practice their violin/brush their teeth if they don’t want to? Can their children drink bourbon for breakfast when they don’t want to drink milk? Can their children have sex with their boyfriend/girlfriend when they don’t want to spend the afternoon studying? Can their children go to the beach when they don’t want to go to school?
There’s a heck of a lot of things that parents force their children to do because they’re the parent and they decide what’s good for their child. Visiting the non-custodial parent–assuming the child really doesn’t want to visit and also assuming there’s no abuse going on–is one of those things the courts should be forcing upon the children and custodial parent. If the situation with the non-custodial parent gets bad enough, it should be the custodial parent’s obligation to seek an order reducing the other parent’s visitation, rather than simply denying visitation and expecting the court to not enforce its own orders.
Only one time in my career have I seen a child refuse to visit the non-custodial parent when the custodial parent supported the visitation and, in that case, the parties eventually agreed to forgo the non-custodial parent’s visitation when it became clear in (court-ordered) counseling why the child didn’t want to visit. I was hoping that the courts were getting away from letting children, with the support of the custodial parent, decide their own (lack of) visitation and that the courts were gradually seeing that this unwillingness to visit was frequently tied to the custodial parent’s disregard for the other parent. However, just today, I have discussed or been involved in three situations in which visitation has been denied because the custodial parent supported the child(ren)’s decision not to visit. It may be time to dust off my “bourbon for breakfast” script.