“You Can’t Make Me!”
The public perception of what family law requires from parents lags by several decades. In the 1970s, it stated that a child aged 12 or older could “decide” which parent to live with. I’ve spent years explaining that the law has changed since; children are no longer in charge of this monumental decision.
The related issue of whether a child can be forced to attend parenting time is evolving, although the Ohio legislature hasn’t yet enacted any statutory mandates. Instead, the issue of when a custodial parent can be held in contempt for not forcing a child to attend court-ordered parenting time is being addressed in individual cases with no more guidance than to follow what’s in the best interest of the child.
Traditionally, risk to health or safety is a defense to not sending a child of any age to parenting time. The risk must be substantial; a dirty house, lack of hygiene, swearing or bad movie choices are not reasons to deny parenting time. Drug use, chronic sewage issues and the nearness of sex offenders to the child are risks that can justify a parent not sending a child for parenting time.
There’s another class of cases where the law is evolving: What if a child simply does not want to see the other parent? What if there are issues between the child and parent that pose “only” a psychological risk to the child? When can the custodial parent take matters into his or her own hands and simply not make the child go?
A recent case from an Ohio Appeals Court is instructive. In it, the children (aged 11 and 13) didn’t want to visit their father for many reasons. Said father had a physical altercation with his brother and the police were called. One time he wouldn’t let the children leave the car while he was dropping them back to their mother because he was unsure if the mother was home; the children finally climbed out of the car’s windows. Overall, the relationship between him and the children had deteriorated to the point where the children refused to spend overnights with him — and then refused to go at all.
The father had filed a contempt action against the mother, alleging that she had violated his court-ordered parenting time by not sending the children to spend time with him. The mother admitted that the children had not gone on parenting time; but her defense was that the children were afraid of their father, and she would not force them to go.
Roughly two years of expensive litigation followed. The magistrate judge found the mother’s defense unacceptable and held her in contempt. After mother had filed objections, the court reversed the magistrate. And when the father appealed, the Appeals Court also sided with the mother. The reasoning of the Appeals Court covered three main areas.
1) The age of the children. The Appeals Court agreed with the trial judge that the mother couldn’t physically force the children to go to their father’s house; both children were simply too big to be man-handled. They had reached ages where they could have input on the visitation schedule and whether to go. The Appeals Court referenced the “suitable age” of the children several times. The children were 13 and 15 by the time the Court of Appeals reviewed the case, and it backed up the discretion of the trial court when the children were only 11 and 13. There’s no “magic age” where children have input. But the larger their size and age, the larger their input.
2) The independent decision of the child. The father had blamed the mother entirely for the children’s refusal to see him. Both courts found that she had encouraged the children to attend and the children had made up their own minds that they didn’t want to see their father because of his own behavior while they were with him. It’s implied that a child must be of sufficient age in order to make an independent and reasonable decision about parenting time.
3) The actions of the mother. The father had made much of the mother’s failure to punish the children for refusing to attend parenting time. The magistrate agreed with him, but two higher courts did not. There was no express obligation on her to impose consequences for the children’s refusal. She had testified that she listened to the reasons they didn’t want to go; if those reasons seemed reasonable, she didn’t impose punishments. The mother never failed to provide transportation or offer enticements such as vacations to lure the children away from wanting to spend time with their father.
Takeaways
Parenting time orders for older children are tricky; I believe this is a reason that standard orders of parenting time simply don’t work on older children. Whether a parent should demand that a child go to parenting time depends on every fact and circumstance and the history of the case.
Custodial parents should be very leery of disobeying court orders; court orders are not suggestions and violations carry stiff penalties. Non-custodial parents should take serious stock of themselves if their children don’t want to see them. The typical scenario is for the parent to become offended, blame the custodial parent, and then file litigation.
Children are people, and people want what they want. The line is fine with growing children testing the limits of defiance. Both parents should look carefully at the reasons for that defiance and evaluate what’s a legitimate gripe, what’s simply drama and what’s an attempt at gaining control. Sadly, that’s virtually impossible to accomplish between bitterly divorced parents.
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by Anne Harvey








