When Children Refuse To Go To Parenting Time

What happens when a child simply refuses to go to the home of the other parent for parenting time? Typically, the only legal avenue to deal with this issue is a contempt proceeding. But to hold a parent in contempt, the Court must determine that the parent “intentionally disobeyed” the judgment. If a child refuses to go, is it the child or the parent who is intentionally disobedient? What can be done about this situation?

Parenting Time Is Not Up To The Child

On one hand, the North Dakota Supreme Court has put the responsibility on the parent to ensure the child attends parenting time. In Montgomery v. Montgomery, a 14-year-old child refused to go to her father’s home for parenting time (or, on occasion, refused to go for all of the scheduled visits). The district court refused to hold the mother in contempt and also stated that the child had reached an age where her activities and friends were more important to her than spending time with her often-absent father.

The North Dakota Supreme Court agreed with the district court: The mother would not be held in contempt, in part because the father’s inconsistent follow-through with parenting time was partially to blame. However, the Supreme Court took issue with the district court’s opinion on the child’s ability to decide whether to attend parenting time or not, stating:

The visitation statute is not intended to place into the hands of the child power over the occurrence, length, time, or place of visitation. […] We must also recognize […] that there is an existing judgment setting out visitation between [father] and the remaining minor child, and [mother] and the minor child are bound to comply with the judgment.

In other words, a child does not get to decide whether to attend parenting time, but a parent might not be held in contempt if the child refuses. A bit confusing.

But Children Cannot Always Be Forced

In a subsequent case, Votava v. Votava, the North Dakota Supreme again took up the issue. In Votava, there were two children ages 12 and 14 who refused to attend parenting time. The district court determined that there was no evidence of the mother discouraging the children from visiting their father. It found that it was impossible, at the children’s age, to force them to make the visit. The children testified that they did not want to spend time with their father. The North Dakota Supreme Court upheld the district court’s decision that there was no willful or intentional discouraging of parenting time and that the mother could not be held in contempt.

The Court in both Montgomery and Votava point out the lack of evidence of interference by the other parent. That may be an indication of how the court will decide this difficult issue in future cases. If there is evidence that one parent is discouraging the children from visiting the other, then contempt might be appropriate. Otherwise, perhaps not. That’s the impression a few courts of other states seem to hold as well. In Bessenbacher v. Bessenbacher the Minnesota Court of Appeals refused to hold a mother in contempt for the children’s refusal to visit their father when there was no evidence that she interfered. In fact, the children testified that their mother encouraged them to visit their father. In a Colorado case, a dissenting justice of the Court of Appeals referenced Votava and agreed with the North Dakota Supreme Court. The justice stated that in his opinion the mother should only be held in contempt “if the court finds that mother has thwarted the order by suggesting or encouraging, directly or indirectly, the children not to spend the court-ordered time with their father.”

Other Options

If contempt is not available to enforce parenting time, then what else can a parent do? One popular option is reunification therapy. This therapy is designed to heal a damaged relationship between a parent and child. A therapist will work individually with the parent and child and over time will attempt to bring them into joint sessions, hopefully culminating in a return to the normal parenting time schedule. The therapist may also work with the other parent, educating the parent on how to encourage the child in the child’s relationship with the estranged parent. In some cases, the therapist may participate in hearings and give recommendations to the court on the implementation of parenting time.

Conclusion

If you have questions regarding this topic, then seek the advice of a family law attorney. Contact the SW&L family law team at 701-297-2890 or email us at: info@swlattorneys.com. The information contained in this article and on this website is for informational purposes only. Do not rely on information on this website as legal advice. Please refer to the full disclaimer here.