What if my child doesn’t want to go to visitation with dad?

One of the questions I get all the time is, “What if my child doesn’t want to go to visitation?”  Or, “if she’s sick, do I have to make her go?”  In general, “Do I have to make my child go?” is a big one, and it can crop up in all sorts of different ways.  Sometimes, it’s related to a specific request—the child doesn’t want to, for example, go on vacation with dad and his new girlfriend.  Other times, it’s more of a general statement.  For example: “My child doesn’t have a very good relationship with her father, and she doesn’t want to spend any time with him at all.”One of the questions I get all the time is, “What if my child doesn’t want to go to visitation?”  Or, “if she’s sick, do I have to make her go?”  In general, “Do I have to make my child go?” is a big one, and it can crop up in all sorts of different ways.  Sometimes, it’s related to a specific request—the child doesn’t want to, for example, go on vacation with dad and his new girlfriend.  Other times, it’s more of a general statement.  For example: “My child doesn’t have a very good relationship with her father, and she doesn’t want to spend any time with him at all.”

This discussion—specifically, what do when your child doesn’t want to go to visitation with dad—raises a bunch of related issues.  To really understand what’s going on, and how Virginia law deals with this type of situation, we’ll need to look at a couple of different but related issues with custody and visitation.The custody factors Custody cases are determined in Virginia based off of the best interests of the child factors.  Most states have them in some form or another; though the exact factors may differ slightly, the purpose is the same.  Courts don’t make decisions based on the parents or what might be good for them; in a custody case, the most important thing is what it is in the best interests of the child. In Virginia, there are ten factors that, according to our courts, determine what is in the best interests of the child.

They are as follows:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. 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;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

Why are the best interests of the child factors so important?

Well, as I’ve already said, because the court gives a ton of weight to them when it comes to making determinations for custody, visitation, and support.   “But,” you’re probably thinking, “I’m not trying to initiate a case.  I’m just trying to work within the parameters of what has already been ordered, or what we’ve already agreed to.” The thing is, though, that if you continue with this course of action (specifically, keeping the child from dad, regardless of your reason for doing so), you may very well find yourself in court, so you should definitely be familiar with the factors anyway.

Besides, factor number 6 is incredibly important, and on point as far as it relates to this specific issue.

Unreasonably denying visitation

Go back and read factor number 6.

It discusses each parent’s propensity to support the child’s relationship with the other parent, and whether visitation was unreasonably denied. This factor has become the backbone of many a dad’s case in recent years.  When mom says no to something, whether reasonable or unreasonable, they begin to gather that information.  If mom has denied too many things by the time dad gets into court, he has a reasonable case for mom unreasonably denying visitation. That’s not to say that you have to accept things that you don’t feel comfortable with.  Most of the time, in that specific situation, I’d recommend that, if dad suggests something that you don’t think is appropriate, you make a different suggestion.   If he calls and says, for example, that he’d like to take the kids to see his new girlfriend while she works at Hooters, you might suggest, instead, that he take them to family night at Chic-fil-A.

I think you’ll likely find, if you repeatedly refuse dad’s attempt at visitation, that he’ll have a pretty good case for you unreasonably denying him visitation.  In the worst cases, this can warrant a complete change in custody.  Parental alienation Parental alienation is another concern.  We see this come up most often in cases where mom says that the child just doesn’t want a relationship with dad.  Usually, dad will say, “Last summer she was fine.  I don’t know why she wouldn’t want to see me, unless mom has been talking about me and has poisoned her against me.” In a lot of cases, courts will listen to this evidence, too.

Again, it harkens back to factor number 6.  The court wants to see that, rather than discouraging the child’s relationship with her other parent, you’re actively encouraging it.  If the child is saying that she doesn’t want to spend any time with dad, especially if that’s coming out of the blue, that could come back to you, too. I get it; in a lot of cases, that’s not fair.  Children, particularly teenagers, go through lots of phases and have passing whims.  One week, they might love dad, and the next week, they might hate him.  Still, as a parent, you really can’t let visitation be affected by these whims—or, at least, not without realizing that there might be some consequences when it comes to custody and visitation later. If your child’s objection is because of a more serious issue (like potential underlying physical or sexual abuse), you’ll want to talk to an attorney about your options immediately.

A child’s preference

Of course, you’re probably also wondering at what point your child will be able to decide for herself whether visitation can or should take place.  Though courts sometimes allow a child’s preference to be taken into account, the real answer to that question is after the age of 18.  Most of the time, children don’t get called to court to give their preference at all.  (It’s considered too potentially damaging, and no attorney wants to be seen as the attorney who called the child as a witness.) If a child’s preference were going to be taken into account, it would almost certainly be after the age of 15 or so.  Even then, the court would also have to determine that the child is of reasonable age, experience, and maturity to make such a decision.

If the child were to say, for example, “I want to spend more time with dad, because he doesn’t have any rules and I can eat ice cream for dinner,” that wouldn’t be heavily weighted in his favor—if it was considered at all. For the most part, the child’s preference is communicated in custody cases through the guardian ad litem.  A guardian ad litem (or GAL) is the attorney appointed on behalf of the child, who ultimately makes recommendations to the court about what type of custody and visitation is reasonable.  The GAL usually interviews the child and both parents before making a written report regarding his or her findings.   I know it’s uncomfortable to force a child to exercise visitation when that’s not what she wants.  Still, you may find that there are even more uncomfortable consequences if you don’t.  Even though it may seem like you’re in control here, it’s really the court that is in charge—and a visitation order should always be followed.   If your child doesn’t want to go to visitation, it’s uncomfortable, and it puts you in a difficult position.  If you want to talk to an attorney about your specific situation, give us a call at (757) 425-5200.

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