Custody and visitation are one of the most contentious points in divorce. When the divorce court hands out the final orders, the co-parents want to follow it to the letter. Parents want to spend the most time with their children, but they will have to face consequences from the law.
When the Child Refuses
One complicated issue is when the child refuses to go with the other parent. In the scenario when the child is already dressed up and packed, and the other parent is on the way, but the children state that they would rather stay with the custodial parent, should the child’s refusal prevail?
There could be many factors that led to this. Perhaps the divorce proceeding was intense. Perhaps there were some accusations thrown against the other parent and it led to negative feelings developing with the child.
In another scenario, the custodial parent already has temporary custody and it was reversed in the final orders. That means the children are being transferred again—and this could push the resistance.
For whatever reason, the law must still be enforced. This is what the law states. The orders must be followed, and there would be consequences if it weren’t.
The Custodian’s Obligation
The managing conservator sees that the judge’s orders are followed. It is not a sufficient excuse that the child refuses.
Precedents in Texas law have ruled the following:
- That the adult has to take responsibility. Aside from the physical preparations of packing the children’s personal things and accompanying them while waiting for the other parent. The custodians need to explain the situation to the child and why they need to go with their other parent.
- There are cases when the custodial parent is admonished by the court. They should also lead the child to go with the other parent. They would even need to physically drag them to their car as part of an effort to “compel the visitation.”
The court will advise both parents that it is their collective responsibility to help the children recover from the trauma or negative effects of divorce. Even if they abhor each other, they should not badmouth the other parent or nurture hostility.
The children should not be subject to interrogation by the other parent or be tasked to “spy” or check on the other parent. This would only complicate the situation and cause further resistance.
While there has been no ruling on “passive contempt” or disobeying the court orders by not performing their assigned duty, there could be consequences if it is discovered that the one co-parent is trying to manipulate the child in any way. It could be loss of custody/visitation or even jail time. Visitation is the right of the parent, and it must be upheld.
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