Welcome to Divorce Academy. In today’s Divorce Academy video, Kevin explains how you can avoid custody contempt when your child refuses to visit with the other parent.
Hey everyone, welcome to Divorce Academy. I’m Kevin Handy and I’m one of the attorney mediators here at SnapDivorce. In today’s video, we are going to talk about “How to Avoid Custody Contempt When Your Child Refuses to Visit with the Other Parent.” This is a problem that comes up all the time in custody situations. It’s very common but as common as it is, it is extremely difficult to provide advice for what you should do. It is very fact-specific. Is your child refusing to visit the other parent because they’re a danger? Are they refusing to visit because the two of you don’t get along and that friction has rubbed off on your child? Is your child old? Is your child young? The consequences of not taking your child depends on the judge. Every situation is different.
I had two very similar situations recently. In both situations, the child was an older child. In one situation, they went to court and the judge said, “Hey what am I supposed to do the child is fifteen years old I can’t make the child go.” In the other situation, again the child is about fourteen/fifteen years old, different judge, and the judge is screaming at the parent, “What do you mean you can’t let them go?” The judge had the parent taken out of court and put in jail that very day. The situations were almost identical but the result completely depended on who the judge was. Those variations make it very difficult to tell someone what they should and shouldn’t do. But I’m going to do my best to give you some general rules of thumb, and some ideas for how you should handle your situation.
If you’re watching this video, my guess is you’re probably already facing contempt. Maybe the other parent filed a petition for contempt. Maybe you have a court date scheduled. The number one piece of advice I can give you is follow the order. If you have a custody order in place, make sure you are following it and make sure you are delivering your child to the other parent. I know you’re probably saying, “Well my child is refusing to go, I can’t do that.” Well, what can you do if you can’t follow the order? In one situation where people can’t follow the order is that the other parent is a danger to the child. Maybe the parent is using drugs, or maybe they are violent.
The advice I give people is that you can withhold your child in that situation. It’s not really your child refusing to go it’s you who doesn’t think your child should go. But if you’re in that situation and it’s a real danger, and you’re actually worried about your child’s safety, there’s not much you can do. You have to withhold your child, but you do so at your own peril. What one person thinks is dangerous, the judge may not, and I see those situations all the time. So, if you’re going to do that you have to be proactive. You have to go out right away and file to modify custody, you can’t just sit back and not let your child go, and not do anything. You have to file a petition to modify custody and go to court and say, “Look the situation has to change.”
Again, if it’s a dangerous situation, contact the authorities, contact your local child protective services. Again, I have to warn you here because everyone is going to perceive things differently. I had a mother, this happened they came over to our firm to help fix the situation, but before she came the mother was concerned that the father was sexually abusing the child, so she took the child to the local hospital, and to a children hospital to be evaluated for sexual abuse. When she got into court, the judge freaked out on her. He said, “How could you take your child and expose your child to that sort of medical treatment.” She ended up taking the child away, and frankly, I thought our client ended up doing the right thing, but the judge just reacted. It’s unpredictable. Another thing you can do is request a psychological evaluation. Those are the things you can do if there is a danger, but my guess is that if you’re watching this video that you’re probably concerned with the situation where the child is refusing.
The other category is going to be, Is your child resisting? Your child doesn’t want to go with the other parent, and you have to ask yourself, why is your child resisting? Also, is your child an older child? Or a younger child? In the case of an older child, 9/10 there are going to be some estrangement issues going on, or maybe the other parents live far away from their friends. You know, teenagers are going to want to hang out with their friends, and they are not going to want to go off to mom or dad’s house, in another town. That is especially true where there hasn’t been a good relationship between the two of them.
For a younger child, say someone who is 6, 7, 8, 9 even 10 years old is resisting it’s going to raise real issues. Why is that child resisting? The question I ask myself when clients come in, and the court is going to ask this question, and they do because I see it all the time. They are going to ask, is it really the other parent that’s the problem, or is it you? The truth is, and you may be surprised that I’m going to say this, it’s probably you. 99% of the time when I have clients come in they say, “My child, my young child is refusing to go see the other parent.” It’s actually not the other parents, it’s my client or the parent that is saying the child is refusing to go that is the problem. They have let their child start to run the show. Maybe their child has picked up on the animosity between the parents. They know that one parent doesn’t like the other and they sort of think that they can get away with running the show.
If you are in that situation, you have to seriously consider that you may be the problem and that you don’t have control of your child, and the solution is that you have to make it clear. You have to say, “Look there is a custody order in place and I’m going to follow it. You have to go.” Just like you would with school, you have to treat the custody order the same way. If you don’t do that, the court is going to ask the question, who’s in control? When you get to court, they may switch custody entirely. They may give the other parent primary custody or more custody time.
If there is a real problem, if there is estrangement, or there is something I didn’t cover. Maybe the young child isn’t going for a reason that’s not danger related, but it’s a legitimate reason. I don’t have an idea of what that would be offhand, but if you have that situation, then just as in the dangerous situation, you have to be proactive. You have to go out and file a petition to modify custody. You have to bring the issue to the court, and have the court change your custody order to make it so it’s workable. If you don’t do that, the court is going to be suspicious. Even if there is a custody contempt petition out their pending, file to modify custody. If you are in a situation where you have an older child that is refusing to visit and you feel like there isn’t much you can do. And you’re asking yourself, “how can I put my 15-year-old kid in the car and make him go see mom or dad.” Then, what I often recommend that my clients do, is that they remove themselves from the situation. You can go out and ask the court or appoint a guardian ad litem and that’s going to be a third party that’s going to look out for the best interest of the child. They may even hire a lawyer to represent the child, or you may have a lawyer represent the child.
The idea is that you remove yourself from the situation. If you go to the court is immediately going to be suspicious that it is an issue between mom and dad and the one parent doesn’t want the other parent to see the child. But if you remove yourself and say, “Look, I’m all for my child seeing the other parent. I want them to go see the other parent but the child won’t go.” Then if you have a guardian ad litem, or the child has their own lawyer it removes you and that perception of bias from the situation. So, it can really help you.
Now, if you’re facing a hearing. If you have a hearing scheduled for next week and you’re going in for custody contempt, this is some advice I can give you. Number one, agree to cooperate with the order. If you go in front of the judge you have to say, “I am going to do my best, and I’m going to follow the order.” That’s the best thing you can do. That’s going to be the number one thing that’s going to save you from being held in contempt. You can explain the situation, and say what’s going on to the judge. Explain it honestly.
Finally, you can consider having your child testify. Now, I’m telling you, that is a real…I don’t want to say danger, but you do not know what your child is going to say. I have parents that come to me all the time and say, “My child doesn’t want to go. Little bobby or Susie will get up on the stand and say they don’t want to go with dad. They don’t like him, and they don’t get along.” But then what happens is that you put the child up on the stand or when the child goes back in chambers to talk to the judge they say something completely different. You have the be really wary of what your child’s telling you, because they are telling you what you want to hear, and they are telling the other parent what you want to hear. But when they get in front of a judge or in front of a court, they are not going to want to upset either parent, so they are going to walk a line and say, “Oh no I like dad and I like mom. I’m willing to go.” So, having a child testify, you have to be 100% certain that they are going to say what you think they are going to say.
If you get to the custody hearing there are definitely some potential sanctions you can face. The first is a change in custody. Like I said before if the judge doesn’t believe you that you can’t make the child go and they think that you are at fault for the child not going they may consider a change in custody, and I’ve seen that happen. If they think that you’re not following the order and you can be they may order attorney’s fees and that could be thousands of dollars.
Finally, and here is the thing that most people are concerned about, and you should be concerned about it is incarceration. If you’re not following the order, the judge can put you in jail. They can put you in jail to compel you to follow the order. That’s called contempt. There are two types of contempt, there is civil and criminal contempt. Civil contempt, the judge can put you in the jail to compel you to obey the order, and so that’s why I gave the advice earlier and you say, “Hey, I’m going to obey, and I will follow the order going forward.” Then you really can’t be held in civil contempt, and you can’t be put in jail to be compelled to file the order. Criminal contempt is very unusual, and I actually have never seen any cases of criminal contempt, but if someone is repeatedly refusing to follow the order and the judge thinks they are doing it on purpose, they can actually hold a criminal contempt hearing and put you in jail to punish you for 6 months or more. That’s something you have to be aware of but you’re probably in the civil contempt area. The key is, follow the order, and if it’s a real situation, be proactive. File a petition to modify. Maybe get someone else to represent the child.
I hope this has been helpful, and I’ll see you next time on Divorce Academy. Thanks!
