Can I Legally Prevent My Child From Seeing the Other Parent?

Divorce and separation often bring about complex emotions and difficult decisions, especially when children are involved. One of the most contentious issues in contested cases is often the custody and parenting time of the children. While it’s natural to have concerns about your children’s well-being during and after a divorce, understanding the legal implications of your children not seeing the other parent is crucial.

What if My Child Doesn’t Want to Go with the Other Parent?

Understanding Custody and Parenting Time Rights

Physical Custody – Possession

When parents separate or divorce, a parenting time schedule is typically established to determine who has the children on certain days of each week. This is called physical custody.

If one parent has the children majority of the time, then this parent is called the “custodial parent” and is said to have sole physical custody or primary physical custody. Primary physical custody is the more modern term. When one parent has sole physical custody, it doesn’t mean that the other parent doesn’t have time with the children. A typical schedule for the non-custodial parent often includes parenting time of every other weekend and often also some time during the week.

When the parents have about equal time with the children, this is called joint physical custody.

When each parent has one child majority of the time, this is called split custody. For an example, split custody is when a teenage child lives majority of the time with one parent while the much younger child generally stays with the other parent. Split custody is far less common than sole physical custody or joint physical custody.

Usually when a person refers to “custody” they are referring to physical custody.

Legal Custody – Decision-making

Legal custody pertains to decision-making authority regarding the children’s upbringing, such as who makes the major decisions regarding the children’s health and educational needs when the parents can’t agree. For an example, the parents might live in two different states with one parent having primary physical custody of the children. The children might live with the custodial parent majority of the year but spend time during the summer and holidays with the non-custodial parent. However, the parents might still have equal say in major decisions regarding their children. Thus, these parents would be said to have joint legal custody even though one parent has primary physical custody.

Legal Considerations

Once a custody order is established, the Court expects both parents to follow the terms of the order. Preventing a child from seeing the other parent without legal justification can have serious legal consequences. Courts prioritize the best interests of the child, which generally include maintaining a relationship with both parents.

Valid Reasons for Limiting Visitation on an Immediate Basis

While generally parents are encouraged to facilitate visitation between the child and the other parent, there are circumstances were limiting or restricting visitation may be legally justified. These circumstances most often include:

Safety Concerns: If there are is a genuine and immediate safety risk, you may have grounds to suspend parenting time. These are things that would generally also allow you to have grounds for an emergency order of custody or an emergency order to suspend parenting time. These could be things like substance use or physical abuse. If the child is truly in imminent danger, the Court may find that you are justified in suspending parenting time despite the court order granting parenting time.
Court Orders: There are a number of orders that can suspend parenting time almost immediately. If the court grants an ex parte protection order, the Court may suspend the parenting time at least until further hearing. If a criminal charge is filed and the child is the victim, the Court will often issue a no-contact order in the criminal case to keep the parent away from the child, who is a potential witness in the criminal matter. You can file for an emergency order of custody if the child is at risk of immediate and irreparable harm. Generally, if there is a safety concern to the level to justify suspending parenting time, then you also have grounds to file for an emergency custody order for further protection for the child.

Child’s Wishes and Preferences

What if you don’t have a safety risk, but the child has other valid reasons for not wanting to go? This one is tricky. Both parents are expected to follow the terms of the Court order. This includes that the parents are required to parent their children in such a way that the parent is able to get the children to the visitation exchanges on time. If you have a child who refuses to go to the parenting time, this puts you in a tough spot. Especially if you agree that your child’s reasoning is credible for not wanting to go, it can be hard to decide what you need to do.

What also makes this tricky is that the judges are not consistent on this. Some judges will allow an older child to decide if they want to go to the visit or not. Other judges say that no child gets to tell a judge whether their court order is followed or not.

The Court can hold the parent accountable for the child’s actions. A child refusing visitation without good cause can result in the parent facing serious sanctions, including serving jail time or being ordered to pay the other parent’s attorney fees.

When the Court Order Must Be Followed

Generally, if there isn’t truly a safety concern, then the child needs to go on the visit as court-ordered. Unless the other parent agrees to skip or modify the visit, the parent risks serious repercussions from the Court for the child missing the parenting time.

Maintaining open lines of communication with the other parent can be especially helpful here. If something happened that has upset the child, will skipping a visit or a short cooling-off period fix the problem? Sometimes time and good communication alone can fix minor problems. Will the other parent agree to skip a visit or to modify the visits temporarily until cooler heads prevail?

Even if there are no grounds to deny the parenting time as currently ordered without the potential for serious repercussions, you may still have legal grounds to modify the parenting time from what is currently ordered. Keep in mind that the legal standard for denying time is different from what is required to modify parenting time.

Even if you don’t have legal grounds to deny time, you may have legal grounds to modify the order. It may be time to proceed with mediation or a modification action to change the parenting plan to fit your child’s best interests at this time.

Teenagers

For teens who don’t want to go, this is difficult as you often have less of an ability to control their behavior. However, a teen often has the maturity to be a reliable witness to testify as to their experiences and reasons for not wanting to attend the visit.

For a teen who is refusing, you can often try to take yourself out of the equation. Allow the child and the other parent to resolve their differences. For example, when the parent comes to pick the child up, send the child out to the parent’s vehicle for pick up. Stay inside and allow them to work it out. If the child decides to go, then you don’t have an issue. If the child does not and the parent decides to leave without the child, then it is hard for the other parent to claim it is your fault if it was their choice to leave without the child. The teen years are tough. Often a counselor or therapist can be helpful if the other parent is also open to it. The counselor can also help quash any allegations of parental alienation if the other parent is blaming you for the teen not wanting to go.

Younger Children

For small children, you can generally physically make them go. However, there may still be emotional or developmental consequences. Further, it can be more difficult from an evidentiary standpoint. If the child is too young to testify, it can be difficult to get evidence of their experiences at the other parent’s home and their preferences. You generally can’t just repeat what the child says to you. This is called hearsay and you can’t generally get hearsay into evidence unless it falls into one of the exceptions.

There are a number of different strategies to get evidence of the child’s experiences and preferences if the child is too young to testify. This can be things like involving a counselor or guardian-ad-litem or doing a formal custody evaluation.

Modification

If the current visitation schedule doesn’t work for your child, it may be time to file a modification action. In the modification action, the Court can change the terms of the order to accommodate the child’s best interests at this time. Often judges who insist a child doesn’t have a choice whether to follow the terms of the court order are also the judges who give a lot of weight to the child’s preferences when determining how to modify the parenting time schedule to what best fits the child at this time.

Some Steps and Options to Take When Considering Limiting Visitation

1. Evaluate the Situation

Assess the reasons behind your desire to limit visitation carefully. Is it based on genuine concerns for your child’s well-being? Is it your preference or the child’s preference? Is the child unsafe or just currently unhappy? Is the child seeking to avoid the other parent for a valid reason? Is it driven by emotions and frustrations related to co-parenting and the separation?

2. Communicate with the Other Parent

Share your concerns with the other parent. Once the other parent has an understanding of your concerns, will they agree to temporarily modify the visits or otherwise agree to address the concerns?

3. Seek Legal Advice

Consult with a family law attorney who specializes in custody and visitation issues. They can provide guidance on your specific legal rights and options based on your specific case.

4. Document Concerns

Keep copies of communications and other tangible evidence that support your concerns about the other parent’s ability to provide a safe and nurturing environment for the child.

5. Consider Counseling

Even good parents are sometimes disliked by their children at times during adolescence. If the parent-child relationship is strained, consider getting a counselor involved.

6. Consider Mediation

There may be some middle ground or an alternative solution. Consider mediation as a way to resolve visitation issues and reach a mutually acceptable solution outside of court. Further, some Court REQUIRE mediation before you can file a modification action.

7. Prioritize the Child’s Well-being

Throughout the process, keep the best interests of your child at the forefront. Avoid involving the child in disputes between parents. Maintain open lines of communication to address concerns.