This is a question that is asked very often. Usually, the child is somewhere between ages 13 and 17. In this age group, these children are beginning to have their own agenda and often have friends they want to visit and hang out with on the weekends. Many times, unless there is something very special going on at the other parent's home, these kids do not want to go. They would rather stay and have fun with their friends and do whatever they normally do that makes them happy. Many times the custodial parent will simply call and say their child doesn't want to visit this weekend, sorry. This is a very touchy subject. The other parent does not like it and I can tell you judges do not like it either.
When children are much younger, they tend to do what their parents expect. They usually do not resist going for visitation. They just go and get accustomed to it as part of their lives. As they get older, they are more aware of what they can get away with. If they know that their mom or dad is going to back them up and let them skip visitation, they will do it. They get what they want. If this gets to be a repetitive ongoing thing, the other parent is going to feel left out and think their child does not care for them anymore or that the other parent is using the situation to prevent visitation. The child suffers because he or she is beginning to lose a closeness that was previously experienced by both parents. Eventually the child can go in another direction growing up and the other parent is no longer a part of this change in the child's life. This parent-child relationship may be damaged and may not ever be repaired.
There is a belief that just because a child is 16 or 17, he or she is "old enough" to make a decision as to where they want to spend their weekends. While these children are older and are becoming young adults, they should not be making these decisions. They may express feelings in this regard, but the custodial parent should always encourage visitation with the other parent. The child must know how important this is and that not one, but both parents will be hurt if the visitation schedule does not remain intact. If the child believes both parents will be disappointed, then it is more likely they will be willing to cooperate. They must know it is not an option. This is a situation that can spiral out of control and everyone loses in the long run.
The Texas Family Code provides that the aggrieved parent may file a Petition for Enforcement with the court. If so, there will be a hearing by the judge. If there is no legitimate reason for not delivering the child for visitation, a parent can be held in contempt of court. The court will not condone this conduct. Generally, the first time will usually end up with the judge warning the parent and possibly finding contempt and suspending a jail sentence. The court may even order periodic compliance hearings to make sure the orders are being followed. If not, the custodial parent may end up in jail. This is a serious matter and the age of the child does not give way to the rights of the other parent. In addition, it is important to understand that even if the other parent is behind in child support, visitation may not be denied.
I believe some parents get caught up in this situation unintentionally. The custodial parent believes he or she is just doing the right thing and wanting to keep their child happy. Most of the time, a mediation between the parties will resolve the problem. If so, then the enforcement action may be dismissed with both parents splitting the costs. Mediation is a method of resolving disputes with a neutral third party acting as a mediator. The mediator is usually an attorney who has experience with family law matters and can help guide the parents into an amicable resolution. Once both parents understand the importance of not only encouraging but requiring visitation, then the matter will usually be resolved without the necessity of further litigation.
However, if a parent believes that the standard possession order is not in the child's best interest and the other parent does not believe this is true, then the only method to fix the problem is to let a judge or jury decide the issue. This is accomplished by filing a Petition for Modification. If the situation is urgent, the judge may hold a hearing and establish temporary orders that will remain in effect until trial. This hearing is crucial. The complaining parent must produce sufficient credible evidence showing that continuing the standard possession order is not in the best interest of the child. If the judge finds there is credible evidence, then the temporary orders will likely curtail or in some cases even require supervised visitation depending on the severity of the situation. If not, the court will deny the request to temporarily modify the standard possession order. After the hearing, the matter will take a course of litigation up until the trial date. The court will usually order the parties to attend mediation before trial. If the evidence at trial is sufficient to warrant a modified possession order, then the court will order such a modification. If not, the request will be denied and the prior standard possession order will continue as previously ordered. Such a trial can be expensive. The judge may appoint an Amicus Attorney for the child and order the parties to split the costs. The court may order a social study and even psychological examinations of one or more of the parties, including the child. If this is your only choice, then having an experienced family law attorney is imperative. I always provide a free initial consultation and explain the process in full detail, answer all your questions and address your concerns. Your decision to proceed will be an informed one and you will know exactly what to expect. If you believe you need your possession order modified, please give me a call.