Sometimes, judges will lay the blame entirely on the custodial parent and his or her alleged inability to control the child. The court may also discount or outright ignore compelling evidence of the child’s psychological distress. The custodial parent then is threatened with incarceration or a change in primary custody unless the parent physically forces the defiant child to follow the custody schedule. These are serious situations, and they do occur.
When they do, the custodial parent and the attorney are put in a tenuous position. On one hand, the custodial parent doesn’t want to face penalties or possible jail-time for violating a court-imposed custody schedule, and the custodial parent’s attorney has a duty to help the client avoid these situations. But on the other hand, the parent naturally wants to protect the child from potential psychological or physical trauma resulting from forcing the child to visit an untrustworthy parent.
Too often judges fail to recognize and aptly consider the traumatizing effects that the parents’ relationship with each other and with the child may have had on the child’s psyche. They are inclined to impose and enforce visitation schedules in a robotic-like manner without actually considering the best interests of the child.
Why? A parent’s impulse to protect a child is primal. So why would a court seek to intervene by forcing a custody schedule that may be damaging to the child?
First of all, the court has a mandate to protect the best interests of the child, which include assuring a relationship with both parents inasmuch as it is possible. Courts look unfavorably on parents who seek to limit the other spouse’s contact with a child. They are naturally skeptical when arguments are put forth to do that. They want to avoid situations in which kids won’t visit the other parent simply because there is no proximity to friends at the other home, or they are inconvenienced by having to pack up clothing and school supplies, etc. to go to another house. Sometimes one parent is simply unwilling to relinquish the children. These situations reflect about 90% of the custody disputes out there. They are not legitimate reasons for refusing to follow court orders.
However, it is not unheard of that a threat to a child’s well-being exists. Or the custodial parent is simply unable to physically force an older child to follow the custody schedule. In such instances, there are a few, scant options.
1. Document Your Attempts to Adhere to the Custody Schedule
First, the custodial parent should document every step he or she takes to adhere to the schedule. Record dates and times of refusals and circumstances surrounding the refusal. Record your attempts to have the child honor the custody schedule. In the case of older children, record attempts to discuss possible consequences from refusals and the possibility that the custody order can be altered to even greater detriment. List every concern or development that results in your inability to adhere to the schedule.
2. Hire a Child Psychologist
Second, hire a child psychologist or therapist, and have the child’s fears and concerns documented by someone other than yourself. Follow through with several appointments such that firm information can be gathered. Appraise your spouse ahead of time that you will be taking the child to a therapist, and provide the therapist’s name, address and contact information. This will demonstrate a responsible attitude of cooperation and disclosure on your part.
3. Have the Psychologist Testify in Court
Third, have the therapist appear and serve as a witness at any court proceedings regarding the custody schedule. This will be expensive. But in the court’s eyes, such testimony will provide unbiased evidence that there is a legitimate threat to the child’s well-being.
4. Request that an Independent Attorney Represent Your Child
In extreme circumstances, one final tactic would be for the custodial parent to request that the child be appointed his or her own attorney. We discuss this option in our next article.