Clearing Up Custody Confusion

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At sixteen, your oldest son has decided he doesn’t want to spend the summer with his mother. He fills your ex-wife in on his plans to stay home with you while she shoots you a picture of the third page of your 2011 custody order. It’s the custody schedule you agreed upon giving her summer visitation and threatening you with a court order if you keep their son away from her. If your son refuses to go, what do you do? Does he have the freedom to choose?

While your custody situation may have it’s own unique characteristics, the foundational problem of this situation is common. So if you’re facing custody confusion, you’re not alone. Here are some facts that may clear up the questions you may be asking:

If a parent is not abiding by a custody order, can the other parent file a court order?

Yes. On May 16, 2017 the North Carolina Court of Appeals issued through McKinney v. McKinney that if a parent is not abiding by a custody order, the other parent can file a motion for contempt. McKinney shows the court’s analysis when a 14-year-old chose not to visit with his mom and instead left on his own to stay with his dad two hours away. The Court of Appeals looked at, among other things, the following: whether the father had encouraged the child not to return to the other parent, enticed the child away from his mother, told the child not to abide by the order, arranged for transportation for the child to leave his mother’s house, and refused to allow the child to go back to his mother’s house. In another case, the Court of Appeals ruled that a mother was not in civil contempt when the mother encouraged her ten-year-old to visit with the father, but the child refused to stay. The mother didn’t use threats or physical force to force the child to stay or to force the child to go.

For further information, check out “What Is The Difference Between A Separation Agreement and A Court Order.”

If my child will not go visit their other parent, do I have to force them?

Based on the Court of Appeals’ decisions, a parent does not have to use physical force or threats to require a child to visit with the other parent. However, if there is any evidence that a parent encouraged a child not to visit or put up any barriers to the visitation, a court can find that parent in contempt of a court order.

If you find yourself in this situation, no matter which parent you might be, it’s important to talk to an attorney about your exact circumstances to see how to proceed. A motion to modify the prior child custody order might be appropriate. It might also be necessary to arrange sit down discussions between an older child and a parent to address why the child doesn’t want to visit. There might not be a simple solution, but you can take steps to promote the best interests of your child and preserve all parental relationships without going to court.