A divorced mother of two boys recently asked me a question that prompted research into the question of when a child’s views as to arrangements for access can really make a difference. The mother said that her and the children’s father have been divorced for 8 years, she has always had care and control of the boys and they visit their father every other weekend. When the boys were younger, even when they resisted going to visit their father, she often told them that they had no choice in the matter. However, as the boys have grown older, their reluctance to visit their father has become more frequent and challenging, too, because they are making strong arguments to support their position. For example, the older boy, who is now almost 18 years old, has music lessons and attends church every weekend, but when he is with his father, his father refuses to take him to music lessons or to church.
Let us start with one fact which is little known or, at any rate, scarcely acknowledged in custody proceedings; contact with parents is the right of the child. For all parents who fight over custody and access, and specifically for those who believe they might have won when one parent’s access to the child is severely restricted, it is really the child who might have lost in that battle, and not the other parent.
Many parents do reach agreement regarding contact, and those agreements may then become consent orders. What is true is that, if there is a court order that mandates arrangements for access to a child, the court order must be obeyed. Unless that order is varied or discharged, the parents are required to comply with it. Invariably, the parent with whom the child resides feels some guilt because he or she has forced the child
to visit the other parent. That parent often does so to avoid being blamed by the other parent for withholding access or to forestall an application for contempt of court on allegations that the court order has been wilfully disobeyed.
There are some cases in which there are prudent, legal or ethical reasons for the parent with whom a child resides to prevent that child from visiting the other parent if, for example, there is reason to suspect that a child is being abused. However, that parent will have an obligation to do more than simply withholding access, it may be important to seek the court’s intervention as a matter of urgency.
Some cases are not as extreme, and involve a young child who becomes hysterical whenever it is time for that child to visit the other parent or a teenager who simply refuses to make the visit. In the case of the young child, the parent may have to continue to urge the child to visit while investigating the root cause of the problem, because it will be felt that the parent must maintain control of the situation. With a teenager, the issue may be more complicated because the parent must protect both that child’s interest and her own, and the best strategy is perhaps to advise the other parent of the situation as soon as possible and encourage a discussion between that parent and the child about the issue.
What may also be useful in the case of the teenager to whom I referred at the start is the intervention of a trained third party neutral, such as a trained counsellor or mediator, who may be able to have a controlled discussion among the parents and the teenager so that the teenager can feel less intimidated about sharing his views about the source of his reluctance to visit with his father. Alternatively, and perhaps at great expense, if a child who is still several years below the age of majority, the court order may need to be varied to include provision for the father’s obligation to facilitate the child’s participation in extracurricular activities whenever he visits him.
The entire situation is complicated and requires a calm approach and careful consideration of the child’s needs and welfare, because the refusal may be justified and it is even be sanctioned by the court.
Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com
