Court of Appeals affirms contempt finding against mother who didn’t force children to visit

Calling bullsh*t on custodial parents who let the children decide their visitation is one of my most controversial and by far my most commented-upon blog.  In that blog I argue that it is the custodial parent’s job to require the children spend their court-ordered visitation time with the non-custodial parent (assuming that parent wants to exercise his or her visitation time) and that if the custodial parent or children believe such visitation is damaging it is the custodial parent’s responsibility to get the visitation order modified. It is the rare week when some custodial parent doesn’t castigate me for arguing children should be forced to visit the other parent against their wishes–which is only a partial misreading of that blog.

The July 6, 2016 Court of Appeals opinion in Noojin v. Noojin417 S.C. 300, 789 S.E.2d 769 (Ct. App. 2016), vindicates my belief. In Noojin, Father suffered through three years of very limited visitation after the divorce because his ex-wife and their two children were resistant to his visitation. For much of this time Father voluntarily limited his visits in the hope that the children would become less resistant but this didn’t happen. Finally Father demanded his court-ordered visitation and Mother did not force the children to visit. After a three-day trial, the family court found Mother in contempt, ordered that the visitation order be obeyed, and required Mother to reimburse Father $41,375.84 in attorney’s fees and costs. Mother appealed.

The Court of Appeals completely affirmed the family court decision. The opinion contains a lengthy factual recitation describing Father’s attempts to visit and Mother’s and the children’s resistance. On appeal Mother’s primary argument was that she could not be held in contempt for not forcing the children to visit their Father against their will. Based on the specific facts of this case, the Court of Appeals disagreed.

Nothing in the opinion notes the Father engaged in abusive behavior towards the children or that the children were afraid to visit. It noted, “[p]art of Mother’s contemptuous behavior centers on her introduction and implementation of the concept of ‘forced’ visitation as a negative notion, failure to facilitate visitation, and acquiescence in Children’s refusal to participate in visitation.” The lengthy factual recitation describes numerous acts by Mother to undermine Father’s visitation and to align with the children in their resistance to Father. She allowed the children to block Father from their cell phone and disinvite Father from their events. She interfered when Father tried to arrange visitation. She allowed the children to be defiant towards Father. The opinion notes, “our state’s policy to ensure minor children of divorce are not estranged from the noncustodial parent.” Mother’s actions did just that.

The Court of Appeals also affirmed the attorney fee award, noting that fees could be awarded under the “compensatory contempt” doctrine and that Mother’s $5 million in assets and gross monthly income of $23,451 made the award reasonable.

Noojin does not stand for the proposition that any time children refuse to visit the noncustodial parent the custodial parent should be held in contempt, stating “our holding in this regard to the facts presented and do not suggest that in every situation in which a custodial parent fails to force a child to visit a noncustodial parent, such custodial parent should be held in contempt.” However it does stand for the proposition that, in the absence of psychological or physical harm, a custodial parent can be held in contempt for his or her refusal to require minor children to visit the noncustodial parent against the children’s wishes. Given how frequently this occurs, how often custodial parents try to justify this behavior, and how inconsistent South Carolina family judges have been in enforcing visitation orders in these circumstances, Noojin is an important opinion for non-custodial parents who encounter resistance to their visitation.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman
  • Thank you, as always, Greg, for your excellent reporting.

    George

  • Mindy Schneider

    Thanks for sharing and taking time to inform the public.
    You are excellent.

  • Ann

    What if the child is 17 years old and the non custodial parent has never had unsupervised visitation? The first 4 years of the child’s life, supervised by a family member. The past 13 in a court ordered supervised visitation program. Would you hold that mother in contempt for allowing the child to stop visiting?

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