In custody cases, just like in divorce, there’s really only two ways to resolve your case: by an agreement between the parties or by a judge rendering a decision in court. If you and your child’s father are dealing with custody and visitation issues, you’ll have to choose one or the other to resolve things.
Of course, though, simply having an agreement or a court order in place doesn’t mean that the problems magically go away. Custody and visitation cases are modifiable based on a material change in circumstances so, as time goes on, you may find that you need to reach a new agreement or go to court again to determine whether the same or a different arrangement is necessary to suit the best interests of the child.
Sometimes, too, the child has other ideas. We see it happen pretty frequently that a child – but often an older one – decides that he or she will not go with her dad for his specified parenting time. So, what do you do?
“I’m just not going to force my child to go if she doesn’t want to go,” moms often tell me. “I physically can’t force her anyway. She’s sobbing, she’s hysterical. It’s not healthy.”
There’s a lot to unpack in these situations, and they’re definitely not one size fits all. Sometimes, these issues mean that there’s something else going on. Do you suspect abuse? Does your child allege that she has been mistreated? Is something else amiss?
It’s worth working hand-in-hand with an attorney at this point, if you suspect that abuse is at the root of your problems. Abuse cases are notoriously difficult to win, so, if you plan to go to court on this, you’ll want to have your ducks in a very, very neat row. You may also want to talk to your child’s doctor or get the child in therapy. Again, an attorney can help you there, especially with the therapist – because, when push comes to shove, you’ll want to make sure you have a therapist who can testify well for you if it comes down to litigation.
You should be aware that abuse is a very serious allegation, and that there are some inherent risks to making it. You’ll want to be very, very sure you have an attorney on your side who is prepared to help you see your case through, and that you’ve got as much evidence as you can possibly manage.
Assuming that abuse isn’t the issue – because often it isn’t – you’ll want to look more deeply at what’s going on between your child and her father.
I know, I know. You may be thinking, “Why would I want to do that?” But it’s really often a bigger issue than just whether your child and her father have a good relationship. And he may very well be a huge jerk who isn’t capable of having a real relationship with anybody. There are a lot of possibilities at this point. But you also need to consider the possible consequences to you.
If you have a signed agreement or an existing court order, you are legally required to follow it – unless and until another agreement or court order supersedes it.
Technically, yes, you should force your child to go. I know that can be a very difficult thing to do, especially if the child is hysterical or is physically so large that you can’t move her on your own. Sometimes, sadly enough, it does come down to PHYSICALLY moving a child – which is heartbreaking for mothers to participate in.
But the risk is that dad will allege that you’re not following the existing agreement or court order. He could file a show cause, and ask for sanctions to be levied against you. He could also accuse you of parental alienation – basically, using your influence to damage the child’s relationship with him.
The best interests of the child factors, too, are important here. They’re always important, because they provide the foundation on which all custody decisions are made, but, specifically, factor number 6 is important here.
Factor 6 reads as follows: “The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child”.
This factor is incredibly important, and definitely comes into play in a case like this with issues like these. We often call this factor the “mom’s downfall” because it’s one that moms struggle with. You can’t be seen as having unreasonably denied dad access to and contact with the child. Even if you’re not – even if these issues are entirely of the child’s own making – it’s going to look that way if the child suddenly refuses to go to visitation with her father or refuses to speak on the phone with him during your parenting time.
There are be all sorts of issues that cause a child to refuse to spend dad’s parenting time with him, and it’s important that you really delve down deeply to understand what’s going on. If you’ve been making disparaging comments about him, or if something about the pendency of the case is upsetting the child and making it difficult for her to have a relationship with her father, you’ll want to do what you can to take steps to mitigate this damage.
It may be that you have absolutely no fault at all, and that this is entirely related to failings on dad’s part – you’ll still want to encourage your child to go for dad’s regularly scheduled parenting time, but also take some time to figure out what’s going on.
To the best of your ability, try to work through these issues with your child. Talk to a doctor or a therapist. Talk to your child directly. Figure out what’s going on, and do your best to help her form a healthy relationship with her dad.
If you can’t manage it on your own, it’s better to be proactive and talk to a licensed Virginia custody attorney as soon as possible. For more information or to schedule a consultation, give our office a call at 757-425-5200.