Calling bullsh*t on custodial parents who let the children decide their visitation

Posted Wednesday, August 4th, 2010 by Gregory Forman
Filed under Child Custody, Contempt/Enforcement of Orders, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Visitation

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.

591 thoughts on Calling bullsh*t on custodial parents who let the children decide their visitation

  1. Chris says:

    A parent should or should not support and stand with their child’s decision? A million dollar question when the child doesn’t want to see a parent. The million dollar answer if the parent doesn’t support the child decision then who does? If the child does not know the parent has their back and believes them? Then who does. And do not go dramatic and compare this to a bunch of other stuff, eg you support you child if they do drugs etc. because no I would not do that, but I would give them all my love and show them the way while knowing I could never force them into recovery because that is the addicts choice. But I can set my boundaries. Compare to going to school, yes my child has an option to attend public school and if not can be home school, and if affordable private school. There are always options.

    Every parent should ALWAYS listen to their child, and do not deny your child’s feelings, and at the end of the day, not all children will disclose abuse, and because they say don’t want to go and don’t give a valid reason, it’s okay, because they are not ready to disclose abuse. The child wants to pretend it never happen and going living, and not to continue to talk abt it, they want to be “normal” and when you admit that abuse, then comes all this other stuff with it, which most adults either deny or have a hard time admitting and dealing with it.

    For any court appointed person who says the child doesn’t want to go, and didn’t give a valid reason, feels it’s okay to force a child. I call bullshit on the JDR System.

    1. Elizabeth Diemert says:

      My grand daughter’s mother plans parties and special events during her father’s visits and tells the child that she can tell her dad that she doesn’t want to visit so that she can attend the party This is a blatant interference with visitation

    2. LKM says:

      Thank you, Chris. This was spot on!

  2. JEREMY R SMITH says:

    I AM DEALING WITH THIS EXACT ISSUE NOW. MY X WILL NOT ENFORCE OUR COURT ORDER VISITATION. TWO VISITS AGO SHE SCHEDULED VACATION DURING MY TIME AND THEN THE NEXT ONE MY DAUGHTER IS TELLING ME SHE DONT WANT TO COME AND NOW TIME FOR THIRD ONE SHE WANT EVEN ANSWER THE PHONE. I HAVE TALKED TO MY DAUGHTER EVERY DAY FOR THE LAST 16 YEARS. NOW ALL OF A SUDDEN SHE IS IGNORING ME AND NOT COMING TO VISITAIONS. I KNOW SHE IS A TEENAGER AND THEY WANT TO HANG WITH FRIENDS. BUT VISITATION IS IMPORTANT WAY MORE THAN MY DAUGHTER CAN SEE AND APPARENTLY MY X. SHE SHOULD NOT HAVE THE SAY SO IN IF SHE COMES OR NOT. YES SHE CAN SPEAK HER MIND AND HOW SHE FEELS. BUT TEENAGERS DONT THINK PAST TODAY. MY X IS GOING ALONG WITH THIS OR EITHER CAUSING IT. WHAT DO I DO?

    1. Matt says:

      I’m a dad in the same situation. I made the mistake of not seeking legal counsel when my ex suddenly refused my visitations and all other forms of contact. We had a disagreement over the COVID vaccines for our kids, me being against giving them to children. But she got herself a lawyer, filed an ex parte order saying I’m unstable and that our kids are terrified to be with me. And I haven’t seen or spoken with them going on 5 months now. Get a lawyer if you can, or go to your towns family law court building and they can help you some. Get the correct paperwork, file a motion against your ex because she is violating your legal right to visitation. It’s of dire importance that you act before your ex. And if she has already taken legal action it’s still very important that you go to the family law court building to file a response. I know this because I was in court yesterday. I didn’t file a response and the judge pushed our case back another 45 days because I knew nothing and thought I could just show up in court and the judge would be able to see that my ex is being vindictive and using parental alienating tactics by the book. Don’t make any decisions based on your emotions. It’s beyond devastating I know, but she will only use that emotion against you. Be a stone cold rational decision maker, and don’t believe that your daughter suddenly wants nothing to do with you. (Assuming no abuse took place)

  3. Crystal says:

    I have five boys and my eldest as he was in high school, spoke about wanting to live full time with his dad that he wanted his love and approval, he knew he had mine. Said he would do “whatever it took” Said that then ran away, ex kept him from me for a year while waiting court, when I fought for him it made things worse between the kids and I, all of a sudden said we abused him, which never happened said he was mad at me, didn’t love me, didn’t miss me. Actually their Father was very abusive towards the kids and I when I was in the relationship with him, went to jail for abuse. The father and us used the same discipline, so he said. Then second son started high school, said on day before running away his Dad would “die if he ever decided not to come back and see him” same thing ran away to dads (but never heard from him again) during court so it looked like a “change of circumstance” said we were abusive again, now pushing it’s my fiancé, more than me, we were gone on date night, not even home. Ex went as far as getting fiancés ex involved and got his daughter to lie and say he abused her, she got caught lying and being manipulated by her Mom, her Mom took it to appeal court and at this time two attorney fees and long list of other fees we were broke, they purposely took it all from us and was allowed to do so, couldn’t afford an appealing attorney so my fiancé lost his daughter. But my ex and I still headed to court now pro Se since my attorney was too stress out. (She quit family law all together) ex said “we were abusive and second oldest didn’t want to come back if they made him he would run away again and be homeless” Mean while they have cars bought for them, by their Dad and having dad as a friend, money from dad but dad doesn’t spend time with them at all working all the time. I was always there stay at home Mom. Now they have no bio parent around, hardly.
    After court oldest told my family “he loves love me and isn’t upset with me and miss me, but when around their Dad, totally different person, or in court.
    Now I only have three boys left, I get to have anything to do with, one day a week and every other weekend. Also; my third oldest is almost in high school, so I am betting that will chance soon) Exs attorney filed a “change in circumstance” after second one ran away, ex and girlfriend made themselves look like saints and make me and fiancé look like the devil, even though I had so much evidence to prove otherwise, since his attorney filed that motion I wasn’t allowed to use most of the evidence cause it was considered “old evidence” (before motion was entered) The judge believed his lies and their false allegations without any evidence being presented only false testimony from boys and Dad and girlfriend. We had to wait so much time in between for our court case to be heard, that it gave his attorney an out, the judges ruled “I tried to alienated myself” instead.
    I had thousands of texts, calls reaching out to my kids, ex about whereabouts, activities, updates on life changes, asking about school, speaking to teachers, counselors, therapists all didn’t matter in end for judge to also rule the kids “no longer need any therapy, at all” also to include my fiancé and I have two boys together and judge also ruled my other boys “shouldn’t have anything to do with my three year old I share with my fiancé.” “they didn’t need to” second son wasn’t conceived until after court, so not included in documents.
    This is five years almost six in a nutshell.

    Thanks for the opportunity to share my story.

    Crystal

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