Most visitation schedules between separated and divorced parents are reached by agreement between the parents. This is consistent with public policy and the law that it is in the best interest of children when their parents can settle their differences without resorting to litigation. When an agreement cannot be reached, a judge is then tasked with determining the terms of custody and visitation in accordance with the best interest of the child. Sometimes, however, regardless of what parents agree to or what a court orders, children refuse to visit with a parent. So what happens in this scenario?
Best Interest Considers a Child’s Preference
The court is required to consider a child’s best interest, which is a broad, yet almost universally applied standard in custody and visitation decisions. The North Carolina legislature and case law have provided numerous, non-exhaustive factors that a court can consider, including: (1) domestic violence; (2) child abuse; (3) substance abuse; (4) plans for the children; (5) the parenting roles of each caregiver; (6) a child’s emotional and physical needs; (7) parenting abilities; (8) a parent’s schedule and time to visit with the child; and (9) the relationship between the parents and willingness to continue the parent-child relationship with the other parent.
Significantly, courts may also consider the preference of the child, based on whether the child is of the “age and discretion” to express such a preference. This is not a defined age, so courts have the discretion to look at a child’s competence to testify or express their preference based on their maturity level, whether they can tell the difference between a lie and the truth, and whether they understand the custody or visitation situation.
A Child Refuses Visitation
So how does best interest play into a situation where a child refuses to visit with their parents?
First, the parents should try to work it out themselves, through family counseling, or through the child’s therapist. This is because it is in the child’s best interest for co-parents to work together and attempt to determine the underlying reasons that the child does not want to visit with a parent. Courts also prefer not to get involved.
But the first approach is not always feasible, as a child’s reasons for not wanting visitation can range from issues regarding their parents’ relationship, to the inappropriate influence of the other parent, to something more sinister—such as domestic violence or child abuse.
If the issue comes before a court, and the child’s preference is that they do not want visitation “just because…” or “they don’t feel like it…”, then courts are going to enforce the visitation. Again, the child’s preference is just one of many factors that a court may consider and does not limit the court’s discretion. Further, continuing the parent-child relationship and bond is presumed to be in a child’s best interest. The court may even order the reunification therapy if the relationship between parent and child has become strained due to stressors not found to be by fault of the non-custodial parent.
However, if there is evidence that supports the child’s preference not to visit, such as abuse, substance abuse, or domestic violence, the court can consider this evidence in limiting or restricting access until such time that these concerns are properly addressed. Further, if the court finds that a parent is essentially convincing the child not to visit with the other parent, the court can enter appropriate orders to sanction that parent and enforce visitation orders.
New Direction Family Law
Contact New Direction Family Law if you need legal advice or representation regarding child custody issues. Our attorneys have twenty years of combined legal experience in providing intelligent, vocal legal representation and helping clients resolve custody disputes. We serve Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call New Direction Family Law at (919) 719-3470 to schedule an appointment, or visit our website.