This is a common question that may be relevant to your specific situation and can often spring up over time, especially as children age. Due to the nature of divorces involving children or other visitation arrangements where the relationship between the adults and children may be complicated, the issue of visitation and whether a child can or should be forced to attend and participate in visitation is a common one in this context.
Most divorce cases involving children or any other scenario involving disputes over custody of a minor child will eventually lead to the issuance of a custody and visitation order. The Parties may also contract with one another to govern the custodial and visitation rights via a Custody Agreement which functions more similarly to a contract between the Parties than a Court Order.
Whether or not you may be compelled to “facilitate” visitation between your child and their other parent is contingent on whether an Order governing custody, visitation, or both, is in place and what those specific requirements with that Order may be.
This article serves as generalized information regarding this subject and is not necessarily tailored to any case specific Orders or situation though, so it is very important if an Order is in place in your case, that you understand the requirements of that Order and if necessary, consult with a licensed California attorney regarding any questions or concerns you may have to that extent.
Is A Custody Agreement Enforceable?
Once a Custody Agreement has been entered by the Court, the Agreement becomes legally binding just like a binding contract in any other transaction. You will be obligated by the terms of that Agreement to adhere to those terms or be liable for potential consequences for violations of that Agreement. This Agreement is between you and the other parent in most scenarios and does not involve the minor child as a Party to the Agreement as the minor most likely is not capable of entering a contract due to their age and capacity.
The important part to note is that if the Child refuses to attend visitation while under your custody and the Agreement provides that you’re to facilitate that visitation, you will potentially be found to be in breach of the Agreement for that violation.
Unless the Agreement is modified and that modification is approved by the Court, it must be followed by the letter, and it is up to the parent with custody of the child at the time visitation is set to occur to make a good faith effort to diligently follow the Agreed upon schedule despite any protestations by the implicated child.
Is A Visitation Order Binding Even If My Kid Does Not Want to Visit the Other Parent?
The answer to this question is a highly likely “Yes”. Assuming there is a valid visitation order and schedule in place that was issued by the presiding Court, you will be bound to adhere to the terms of that order regardless of your agreement or your childe’s agreement with the order itself. The law provides that the orders must be followed exactly.
Your child’s willingness to visit the other parent if required by the Order is not grounds for any violation of the terms of the order itself.
As previously stated, unless the Order is modified by the Court, it must be followed by the letter, and it is up to the parent with custody of the child at the time visitation is set to make sure the terms of the Order are adhered to. Additionally, unlike a custody agreement the Parties cannot mutually modify the terms of a Court Order and any modifications to the Order must be sought by moving the Court to make modifications or changes to that specific Order.
What If My Child Is Refusing Visitation?
This can be a tough scenario to deal with because forcing your child to interact or otherwise do something that may not want to can be very difficult. To the extent possible, you will want to determine what the reasoning is and why your child may be hesitant to attend visitation.
If any explanation that is particularly troubling is provided (e.g., fears of abuse) you will want to immediately contact your attorney to discuss what options you may have available to you. In such a scenario, it is important to immediately seek judicial intervention if it is necessary to preserve and protect the safety and wellbeing of the child.
Importantly though, your obligations to facilitate visitation remain in place up until the moment they are modified or changed by the Court regardless of any new information you may have received and learned.
Be prepared as well to have to potentially testify in court regarding the refusal by your child. To this extent, you will want to document on incidents of refusal, reasoning for refusal if that is possible to obtain, and communicate with the other Parent in writing regarding the refusal and barriers your child is presenting to the visitation occurring.
Does My Child’s Age Matter?
Yes, it does for a few reasons.
First, where there is a child refusing visitation, the Court will likely be very interested in what efforts you have undertaken to provide reasonable visitation and to adhere to the exact terms of the Order or Agreement in place. Where a younger child (e.g., a “toddler”) is involved and refusing visitation, the Court is more likely to place the burden of having made that visitation occur on you. This is because as an adult and with a child so young, the Court will likely perceive that you should not have been swayed by their protestations and should have maintained control and made sure the visit happened.
Where a child is a teenager or even very near to the age of eighteen, the Court will still want to understand and receive an explanation as to why visitation may not have occurred and/or is being refused by the Child but the Court will likely acknowledge and understand the difference in difficulty between making a teenager compliant versus a toddler.
In California, for a child in their teenage years, it’s possible the Court may even seek their individual opinion on the issue although the Court is not compelled to follow their requests or opinion. This is a large departure from how this issue may be handled with a younger child as the likelihood of the Court even considering their opinion on this issue is significantly lower than with an older teenager.
It can be difficult to deal with this scenario and puts parents in a tough situation where a child refuses visitation. While its important to ensure your safety and the safety of the child, you will want to consult with a licensed California attorney regarding your options and potential defenses where visitation has been refused by your child and may have placed you in violation of an existing Agreement or Court Order.