Further complicating the matter is the dearth of controlling principles or law in these cases. Courts in Bucks County custody matters, for example, have taken wildly divergent approaches to such situation. In one case in which our firm was involve, the judge told the child during the custody hearing that the court was not going to make the child do “anything he didn’t want to do,” essentially granting the child carte blanche to control the situation and, by extension, his parents. In other cases, judges will lay the blame for the failure to follow the custody order entirely on the custodial parent and his or her allegedly “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.
When these situations occur, the custodial parent and his or her attorney are put in a tenuous position. On one hand, the custodial parent wants to avoid incarceration or other penalties for violating a court-imposed custody schedule (for failing to physically force the child to visit the other parent) or a change in primary custody, and the custodial parent’s attorney has a duty to help the custodial parent avoid these unfavorable outcomes. On the other hand, the parent desires to protect the child from potential psychological or physical trauma that may result from forcing the child to visit the other parent. In many situations the custodial parent is also simply unable to physically force an older child to follow the schedule. As a result the custodial parent’s and his or her attorney’s legal option are few.
However, one available tactic that can potentially help deflect blame for the child’s failure to abide by the custody order and, hopefully avoid a finding of contempt and the imposition of sanctions by the court, is for the custodial parent to request that the child be appointed his or her own attorney. Rule 1915.11 permits the court to appoint an attorney for the child. Under the rule:
(a) The court may on its own motion or the motion of a party appoint an attorney to represent the child in the action. The court may assess the cost upon the parties or any of them or as otherwise provided by law.
Pa. R. Civ. P. 1915.11(a). Although there is little case law interpreting when an attorney should be appointed for a child, the court is granted broad discretion in these matters. Generally, a strong case for appointing a child his or her own attorney can be presented where the custodial parent alleges that an older child refuses to visit the other parent due to alienation or psychological distress. Once appointed, the child’s attorney should advocate for the child’s preferences, as opposed to the theoretical “best interest” of the child, which is traditionally advocated by appointed guardian ad litems. In advocating for the child, the child’s attorney will likely need to present evidence that it is the child who refuses to follow the custody order, as opposed to the custodial parent, and that the child mental well-being (and perhaps physical well-being) is in danger if the child is physically forced to abide by the order. Indeed, in most cases the evidence will reflect that the custodial parent has actually attempted to force the child to follow the order, but that the child has resisted.
Too often judges fail to recognize and aptly consider the traumatizing and detrimental effects that the parents’ relationship between themselves and with the child may have had on the child’s psyche, and they are inclined to impose and enforce visitation schedules in a robotic-like manner without actually considering the best interest of the child. Parties in the midst of custody litigation and/or divorce often have had volatile relationships that inevitably adversely affected their children and their relationships with one or both parents. These concerns cannot be ignored. Rather than attempting to enforcing unworkable and potentially psychologically damaging custody schedules where a child refuses to visit with a parent through contempt proceedings, children would be better served if the courts focused on attempting to rehabilitate the child’s damaged psyche and, perhaps, the child’s damaged relationship with one or both parents through counseling or other means. Of course, the ultimate question is whether such relationships, once damaged, can be rehabilitated or repaired so long as the child (and soon to be adult) remains an unwilling participant. The answer is, in all likelihood, no.