Family court cases can be stressful for parents, but equally so for the children involved. U.S. family courts try to minimize the risk of disruption and distress to children by making decisions about custody and visitation that are in the best interests of the child. However, a child may still refuse visitation with a non-custodial parent even if the court decided the visitation schedule was in her best interests. This can cause problems for both parents, and may lead to a charge of contempt against the custodial parent.
Children may refuse visitation with a non-custodial parent, but laws and guidelines on this issue vary greatly by state. In some states, a child's age is a factor in making visitation decisions, but in all cases the final decision lies with the court and what it determines to be in the child's best interests.
What Are Visitation Rights?
Visitation (also known as time-sharing) rights are the rights of non-custodial parents to spend time with their children. Every parent has the right to visitation with his child, i.e., the right to have physical custody of the child for regular, specific periods of time.
If divorced or separated parents cannot agree on visitation between themselves, either party can seek the court’s assistance. The process begins with filing a petition for custody, unless the parties are already involved in a family law case such as divorce, in which case the non-custodial parent can file a motion for visitation.
If both parties agree to the request for visitation, the process is very simple. The motion is presented to the judge to be signed. However, if parties do not agree to the visitation request, the case may proceed to mediation and/or a full trial.
Many parents create a visitation schedule to ensure visitation goes smoothly, to prevent mistakes and to minimize conflict. This may be created with the assistance of the court. Typically, it details the dates and times the child will be with each parent and includes holidays, vacations and special occasions like birthdays.
If the parents are flexible, communicate well and have an amicable relationship, they may not need a visitation schedule. An open-ended visitation order gives the parents a lot of freedom to work out the details between themselves.
Sometimes, the court may make an order for supervised visitation. This is common in cases where a non-custodial parent has been absent from the child's life for a long time, to establish a new relationship between the parent and child, or where there are possible risks to the child's health or welfare due to a history or allegations of abuse, neglect or domestic violence.
If visitation with a parent would cause the child emotional or physical harm, the court will conclude that it is not in the child's best interests and make an order for no visitation.
Best Interests of the Child
When making a decision about visitation, as with any other matter that concerns a child, the court applies the "best interests of the child" standard. This means the court considers many factors relating to a child's physical, emotional and developmental welfare when making a decision on his behalf. This takes the focus away from what the parents want, and onto what is best for the child in each particular case. Family law in every state sets out a list of factors the court should consider. While the wording may be different, all states take into account each parent's emotional ties to the child, the financial support each parent is able to contribute, each parent's ability to provide a safe, stable, and nurturing home environment and the child's relationships with siblings, among other things.
At What Age Can a Child Refuse Visitation?
When applying the best interests of the child standard, the court may consider the express wishes of the child herself. However, this is not the only factor that is considered, and is certainly not the determining factor.
The age at which a child's wishes regarding visitation and custody are taken into account varies by state. In Texas, the court will consider the preference of a child age 12 or over. Under state law, at a custody hearing or in a trial without a jury, the court can interview the child in chambers to hear her wishes. The court may also, at its discretion, interview a child under 12 years of age.
Some states do not provide a specific age at which a child's preference for visitation and custody are taken into account. In Ohio, the court has the discretion to interview in chambers any involved child regarding her wishes and concerns. What is important to the court is not the age of the child, but her reasoning ability. If the court determines that the child does not have sufficient reasoning ability to express her wishes and concerns with respect to visitation and custody, it will not interview the child or consider her wishes when making a final order.
What if a Child Refuses to Visit His Father?
A common question asked following child custody proceedings is, "Can a child choose not to visit a parent?" In other words, "when can a child refuse visitation with a non-custodial parent?" The answer is, "any time." If a child is not happy with a visitation schedule, he may refuse to attend visitation with a non-custodial parent. If this happens, the parents may wish to consider the reasons for the child's reluctance to visitation before seeking further involvement from the court.
Following a visitation order, the custodial parent must make sure the child is available for visitation in accordance with the terms of the order, which may include dropping off the child at a certain location, at a specified time. If the child is unable to attend visitation due to illness or another genuine reason, the custodial parents must let the non-custodial parent know as soon as possible, and make arrangements for an alternative visit.
Remedies for Breach of Visitation Order
If the child does not attend visitation due to the refusal of the custodial parent to follow the terms of the order, that parent could face contempt charges. It is up to the non-custodial parent to file an order with the court stating that the other parent is thwarting visitation. This is an option even if the other parent is cooperative but the child himself is refusing visitation.
If you are a parent who is cooperating with a visitation order but your child is refusing to cooperate, and you are faced with a charge of contempt, you must prove to the court that you are making all attempts to follow the court order, and that it is your child who won't cooperate. Ultimately, the judge will decide whether she believes that it is the child, not the parent, who is preventing visitation.
If you are the custodial parent and your child is refusing visitation with the other parent, you should keep written records of all instances when visitation was refused, and inform the child’s other parent (or his attorney, if there is no direct contact between you and the other parent) immediately. You should also record the efforts you have made to encourage your child to attend visitation.
You shouldn't force your child to attend visitation, but you could ask the other parent to help make the visit happen, such as by calling the child on the phone or coming to your home and talking to the child to try to understand why he does not want to attend visitation. Whether the matter ends up in court largely depends on the relationship between the parents. If they are both cooperative and wish to be amicable and understanding, they have a better chance of resolving the issue without further court action.
If your child tells you he is being abused or neglected by the other parent, or you have genuine concerns that this is happening, contact your family lawyer immediately.
Modification of Custody
If your child continues to refuse to attend visitation, you may, as the custodial parent, apply to court for modification of the original custody order. In most states, modification based on the child's own wishes will be considered only if the child is a teenager. For example, in Georgia, a 14-year-old child’s request may be considered a sufficiently material change of circumstances to file a modification of custody. Under Georgia law, the court may also consider the desires of children between the ages of 11 and 14. However, the final decision always lies with the court, meaning visitation can be made over the child's wishes. In all cases, a non-custodial parent has a right to seek judicial review of a child's refusal to visit.
Additional Child Custody Laws
Physical and Legal Custody
Before the court makes an order for visitation, a decision about physical custody, i.e., with which parent the child lives, must be made. Many states favor joint physical custody whenever possible, meaning the child lives with one parent some of the time and the other parent the rest of the time. However, the court will consider and grant sole physical custody to one parent if it decides this is in the child's best interests.
The other type of custody is legal custody. This is the right of a parent to make important decisions concerning the child's health, welfare, education and religion.
The court has the power to make different orders for custody, depending on the circumstances of the case and what is in the best interests of the child. A sole custody order gives one parent both physical and legal custody of the child. The other parent may have visitation rights, but has no custodial rights and cannot make decisions affecting the child. Joint legal custody gives both parents a say in decisions that impact the child. Under a joint physical custody order, children split their time between both parents.
Another issue commonly dealt with in child custody cases in child support, which is the amount of money that a court orders a parent (or both parents) to pay every month to help cover a child’s living expenses. Every state has its own child support laws and guidelines. These statewide formulas take into account various factors, such as how much money the parents earn or can earn, how much other income each parent receives, how many children the parents have together, how much time each parent spends with the children, how many children from other relationships are supported, and expenses such as health insurance, union dues and retirement contributions.
In some states, such as California, working out child support involves a complex calculation taking into account both parents' net monthly disposable income, the high earning parent's net monthly disposable income and the approximate percentage of time that the high earner has or will have primary physical responsibility for the children, compared to the other parent.
Child custody laws can be very different from state to state, so it is important to familiarize yourself with the laws of your state to prepare yourself for a child custody case.