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Can I Force My Child to Follow the Parenting Plan/ Visitation Schedule? - Katrina S. Zafiro

Can I Force My Child to Follow the Parenting Plan/ Visitation Schedule?

Many parents struggle trying to convince their child to visit the other parent per their parenting plan or residential schedule.  For example, it is the other parent’s turn to have the child for the weekend, but the child refuses to go. The older the children, the harder it is to make them comply with the residential schedule if they don’t want to. While you as a parent may understand the consequences of not following the parenting plan, your children may not.  It can be tricky to explain to your children why they need to visit their dad or mom even if they don’t want to.  

A parent can be held in contempt if he or she does not comply with the residential provisions of the parenting plan in bad faith.  This means you can be held in contempt if you intentionally disobey your parenting plan order.  When determining whether a party intentionally disobeyed an order, the court strictly interprets the order to decide whether the facts plainly violate the order. An attempt by a parent to refuse to perform a duty provided in a parenting plan is deemed bad faith. Parents are deemed to have the ability to comply with orders establishing residential provisions and the burden is on a noncomplying parent to establish by a preponderance of the evidence he or she lacked the ability to comply with the residential provisions of a court-ordered parenting plan or had a reasonable excuse for noncompliance. Obviously, the child’s best interests and safety always are of utmost importance and if there is a genuine threat to your child’s safety, you may be able to prove that you did not disobey the parenting plan in bad faith and had a reasonable excuse for noncompliance. 

So, what happens when it’s not you but your child who does not want to obey the parenting plan? What happens if your child simply does not want to go to his/her other parent’s house? Or does not wish to spend time with his other parent?  The court expects a parent to make reasonable efforts to require a child to comply with the residential schedule of a parenting plan. For example, if your child refuses to go, you cannot just cancel the visit and say that the child didn’t want to see the other parent. You have to make reasonable attempts like getting the child ready, packing their bags, and driving them to the exchange location, etc. You have to at least make reasonable attempts to make sure that the other parent can have the child for visitation per the residential schedule.

While the courts recognize that a parent should not be punished for the actions of a truly uncooperative and insubordinate child, it also notes that sanctions are appropriate when a parent is the source of the child’s attitude or when considering the child’s age and maturity, it is within the parent’s power to overcome the child’s defiance.  For example, a court in Washington state  found that a mother acted in bad faith in violating the residential schedule as she was a competent and capable parent and had the ability to require her 13-year old child to comply with the court orders, but she failed to do so. There was evidence that the mother either contributed to the child’s attitude or failed to make reasonable efforts to require the child to comply. In this case when the father went to pick up the children from the mother’s house for his residential time, neither the children nor the mother was at home. Later that day, when the father returned to pick up the children, one of the child was still not at home and he was told that she was horseback riding and that she would be delivered to the father’s home later that day.  However, the mother later called the father and told him that the child would be staying with her instead of going with the father. The mother in her response to the motion for contempt brought by the father stated that she was not in contempt because it was her daughter who refused to visit her father. The mother stated that she had tried every method of persuasion available to her to encourage the daughter to visit the father but the daughter adamantly refuses to visit him. The father also submitted declarations describing a pattern of behavior by the mother in which she violated the residential schedule.  For example, when the father had planned to take the children with him on vacation during a portion of his four weeks summer residential time, shortly before they were to leave for the vacation, the mother called him and told him that the daughter would not be going on vacation with him and that he could come over to her home and drag the daughter out. The father reluctantly forfeited a week and a half of his summer residential time.  In another incident, the father was planning to leave on a two-week trip with the children and the mother called to tell him that the daughter was sick. The father again had a shortened summer residential time with the daughter that year. 

The mother also presented a declaration in court purportedly written by the daughter expressing her views as to residential time with the father in which she stated that she did not want to spend four weeks with her father that summer. The father responded that the declaration was not a free expression of the daughter.  The trial court entered its findings including that the mother had overly involved the minor daughter, including facilitating the daughter’s signing a statement which was filed in this action. The court ruled that the mother was an intelligent, competent, and capable parent with the ability to cause her thirteen-year-old to comply with the court’s orders, yet the mother had failed to do so. She was charged with a duty to comply with an order, had the ability to comply, and failed to do so. The court found that the fact that the daughter does not live on her own and has lived in the home of the mother is evidence that the mother could have caused the daughter to visit her father. The court held that the mother was responsible for making reasonable efforts to ensure daughter’s compliance with the residential time order, reasoning that a child of twelve or thirteen is not of a sufficient age and maturity that she can be given decision-making authority over whether visitation occurs.

So, what does this mean?  It means you may be required to “coerce” your child to comply with the residential schedule depending on the age and maturity of your child and the best interests of your child.  Unless the safety and welfare of your child is at risk, you must make reasonable efforts to make your child follow the parenting plan, despite their age or maturity.  A parent does not necessarily have the responsibility to coerce an “obstinately defiant” or “stubbornly disobedient” 16 or 17-year-old child to visit another parent. 

The court may evaluate the credibility of the parties and witnesses and the persuasiveness of the evidence to determine whether a child is disobedient, whether the parent caused or contributed to the child’s attitude, and whether the child’s best interests justify requiring the parent to coerce a child to comply.  This means that the court will decide whether a parent was in contempt based on the facts and evidence in a particular case. 

In another case, the court did not find the mother in contempt after evaluating all the evidence and determining that the child feared being emotionally and physically abused by the father and there were declarations/evidence supporting the validity of the child’s fear.  The child ran away from the home when she was scheduled to visit the father. The child then filed for a protection order against the father explaining that she feared him, which was later dismissed as she failed to appear at the hearing.  She then filed a petition for emancipation with ten supporting declarations. Some declarations were from her half siblings describing the father’s physical and mental abuse. 

The court also found that the mother could not ensure the child’s visit with the father despite her willingness to do so. The child in this case was 17 years old.  The mother established that she had not coached or influenced the child who independently obtained counsel and pursued emancipation. The mother had text communication with the child as well after she ran away but could not convince the child to visit the father. The court found that the child was almost 18 and did not appear to reside with the mother or under her control. 

Whether or not you can be held in contempt for not following the parenting plan depends on several factors including the parenting plan and the facts of your case.  At Zafiro Law we thoroughly evaluate your case and provide legal advice and recommendations best suited for your case and for the best interests of your child. Contact us today to schedule your consultation!

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Zafiro Law

As an attorney, I am passionate about helping my clients achieve peace of mind in navigating the complex areas of family law and immigration law. Your case will get my full and dedicated attention—whether you are seeking to navigate the complexities of your family law matter or overcome the challenges of your immigration law case.

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