What To Do When Your Child Refuses Visitation?
A court order for visitation, aka parenting time, and/or legal decision-making is legally binding and must be upheld by both parents (enforcement). A parent who regularly skips scheduled parenting time is just as guilty of violating the order as a parent who doesn't deliver the child for the other parent's scheduled parenting time. If the child refuses to visit or communicate with a parent, both parents are still expected to honor the terms of the custody agreement until the court modifies. The other parent has the right to request that the court enforce the agreement with mandatory visitation - regardless of the reasons for the child's refusal to go.
If your child refuses to visit or communicate with their other parent and you believe that it's in the child's best interests to deny visitation, the best course of action is to file to modify your custody orders in family cour (Modification)t. You'll need to provide sufficient evidence to the court to support your claim. You will also want a good, qualified attorney in your corner. If the court agrees with you, the judge can eliminate the requirement for mandatory visitation. Depending on the situation, the judge may also choose to modify the legal decision-making portion of the agreement as well. Common reasons for eliminating mandatory visitation are sexual abuse, extreme substance abuse, significant (non-managed) mental illness, significant domestic violence, exposure to criminal activity, etc.
Grounds to Modify a Custody Order
In order to modify a custody order, the person seeking the modification must prove that there has been a substantial and continuing change in circumstance. Generally speaking, the court will modify an existing custody order if:
• Both parents reach an agreement
• The child is of suitable age and maturity, and has expressed his or her preferences
• The parent who has the legal decision-making right to designate the child's primary residence has voluntarily given up primary possession and care of the child
• Parental unfitness
In each of these situations, the child's best interests are still the deciding factor. The court will not approve a request to modify custody based on an agreement between the parents if the agreement is not in the child's best interests. Nor will the judge honor the child's request to stop visiting a parent if doing so isn't in the child's best interests. All of the above are valid grounds to request a modification. However, each situation is weighed by the court.
How to Modify a Custody Agreement
First, you must file a Petition to Modify. If the primary reason for your request for modification is the child's preference, the court may order a child interview (children do not normally address the court directly). The interviewer will seek to understand the reasons behind the child's preferences, and she will present her findings to the court in a formal report.
Second, at the hearing, you willhave the opportunity to present evidence as to why honoring the child's wishes is in their best interests. Verbal testimony is appropriate. However, physical evidence is usually more compelling. Of course, the other parent will also have an opportunity to fight this motion and offer evidence that terminating his or her parental right to parenting time is not in the child's best interests.
Finally, when the judge has enough information, he or she will determine whether modifying the custody agreement is in the child's best interests, and if so, then to what extent the agreement should be changed. Even if the judge does not agree to completely eliminate mandatory visitation, they will likely limit parenting time to accommodate the child's expressed preferences.
If you are trying to modify custody of your children, please contact our experienced Attorneys at LASITER & JACKSON at (602) 234-5900 to schedule your free 30 minute consultation.