Discipline For Children Who Refuse to Engage in Court-Ordered Visitation

One of the most difficult problems facing non-residential parents is a situation where a child refuses to engage in court-ordered visitation. If a child is above a certain age, a child can be constructively emancipated. Another option that the court has is to suspend or terminate residential parent’s right to child support. However, that does not work in every situation. Dealing with such refusal and attempting to resolve this problem, in Matthew A. v. Jennifer A., 2020 N.Y. Slip. Op. 51071(U), Justice Dollinger of the Monroe County Supreme Court imposed disciplinary measures on the children to protect the parental choice of best interests for the children, and also imposed significant sanctions on the parent who violated visitation orders.

In Matthew A., the father sought a contempt finding against the mother for refusing to follow increased visitation provisions that were in place for the parties’ three children, ages 14, 12 and 10. The mother argued that she was unable to force the children to spend additional time with the father and that the children should visit the father upon a schedule determined solely by their wishes. In effect, the mother’s argument would give the children veto power over the father’s access to them. Justice Dollinger wrote about the children’s position that the children “offer no justification, however; they just do not want to have someone dictate their schedule. They want to make that choice themselves and, as they say it, live their own lives. They tell the Court that they can decide their own best interests”.

In the court’s view, this argument was contrary to the most basic of parental rights, the right to make decisions in the best interests of the children. The court stated that “giving parents adequate access to their children is at the very heart of the children’s “best interests”.”

Since the mother’s actions in violating provisions of the court orders related to visitation subjected her to a finding of contempt, the court, utilizing its contempt powers, imposed significant restrictions on the children that the mother would have to enforce. The restrictions included the children’s prohibition of participation in extracurricular activities, prohibition of visits with friends and family members, and any other activities outside of the home.

The children’s attorney objected to those restrictions. In response, the court wrote that:

AFC, in a post-submission email to this Court, argues that the children are being held hostage and the restrictions are substantially impacting their lives, their development, their time with their mother’s family and other pursuits. The restrictions designed by this Court are intended to do exactly that but, the notion that the sons are hostages or are being restrained in their daily activities against their will is misplaced. They have the key to relieve the restrictions: take time to visit with their father as their mother and father agreed the father should have. Once that occurs, the restraints imposed by this Court disappear. The AFC also argues that the father, in seeking this Court order, has unreasonably punished his children and that this Court should take his conduct, in seeking to restrict their busy social lives, as evidence of some malevolent inclination on his part. In this Court’s view, that argument is a serial assault on parenthood: a parent, seeking a child’s compliance with a reasonable parental request, usually invokes increasingly severe penalties to obtain a child’s compliance with any reasonable rule. When a child refuses to, say, eat their vegetables or go to their grandparent’s anniversary celebration, the discipline track starts with “go to your room,” advances to “no television,” then, “give me your phone and your ‘screen,'” followed by ” sorry, “no ride to practice or ride to your friend’s house,” eventually reaching, “sorry, I won’t sign the permission slip to play soccer.” These disciplinary steps are not novel but, instead universal.

In view of contempt findings based on the mother’s behavior, the court offered the mother a way to purge contempt by requiring the mother to finance family reunification therapy for the children and their father with a recognized therapist, with the mother financing the first $7,500.00 in therapy costs, and the mother paying an award of attorneys fees and costs to the father for the fees and costs to bring this motion

Additionally, as a result of the children’s refusal to visit, the father asked that his child support obligation be eliminated or reduced. The court agreed, holding that “the father’s child support obligation is suspended until the three sons participate in the visitation plan detailed by this Court.”

Given the mother’s conduct of involving the children in this litigation and other violations of the court’s orders, I am not surprised by the decision. It will be interesting to see if the order is going to be appealed and if it is, if it will be affirmed.

Constructive Emancipation, Burden of Proof and Contact With the Child By Non-Custodial Parent

I often see cases involving constructive emancipation which typically arise when the child refuses to have contact with the non-custodial parent.  If the contact cannot be reestablished after a period of time, the non-custodial parent can move to terminate the child support obligation, assuming that the non-custodial parent was not at fault for the breakdown in the relationship and the child is of the employeable age.  Burden of proof ofconstructive  emancipation rests on party making the assertion.  Constructive emancipation cases are not easy to prove and are factually intensive.  I have previously written about various issues in constructive emancipation here.

A recent example of such case was Dewitt v. Giampietro, 66 A.D.3d 773 (2nd Dept. 2009).  According to the Appellate Division, although the daughter refused to have contact with the father after some incident which was not described, the father ceased making attempts to reestablish contact with daughter after approximately one month.  According to the Appellate Division, one month period of trying to reestablish a relationship with the daughter could not be considered as a serious effort by the father.  The court also noted that the daughter testified that she loved her father and would be willing to re-establish visitation gradually through counseling.   According to the Appellate Division, the child’s reluctance to see parent is not considered to be abandonment.

Accordingly, if a non-custodial parent is in a situation where the child of employable age, generally high school graduate or older, is refusing to have any contact with the parent, the parent must keep on trying to reestablish contact for a period of time in excess of several months.  Any such contact may take several different forms, and phone calls, email, letters, postcards, and even text messages may be utilized.  It is important that the parent remembers the child’s birthdays and other special occasions.  Generally, the courts are reluctant to terminate child support and will do so only if the non-custodial parent will demonstrate that the continuing pursuit of the relationship with the child would be fruitless.