Case Study: “Run, Kids…Here Comes the Judge!”
Kids think parents are annoying. This week’s case asks:
Can a Judge order a parent to punish children who refuse to obey court-ordered visitation with the other parent?
For the answer to that, we head out to Rochester, which sits on Lake Ontario's southern shore – the county seat of Monroe County in Western New York State's northern tier, northeast of Buffalo and northwest of Syracuse. Rochester is a great city with many excellent restaurants. But, who can resist Dinosaur Bar-B-Que on Court Street, which is a minute away from the courthouse, and has an excellent view of the Court Street Dam on the Genessee River? Author Linda Sue Park lives in Rochester – she has written six children's novels and five picture books. Park's work achieved prominence when she received the prestigious 2002 Newbery Medal for her novel, A Single Shard.
Background: The Divorced Couple and the Three Sons
The divorced couple entered into a separation agreement less than two years ago. The agreement created joint legal custody of the children and declared that the three sons—now ages 14, 12 and 10—would primarily reside with their mother.
The agreement provided that father would have alternate weekend visitation from Friday afternoon to Sunday at 6:30pm. The agreement further provided that the father had only one dinner visit during the week with his sons, provided he gave the mother one week's notice.
Unfortunately, the visitation schedule was not followed by the mother. The father had to go to court. Here is what happened.
Testimony of the Father
Q: Did you get to see your children as required by the Court Order?
A: No. My sons had refused to participate in the extended overnight on Sunday evening. Two times when I arrived to take the boys for the weekend, their mother said that "the boys were not coming."
Q: Did you have the dinner visits?
A: Yes. But the boys were generally anti-social.
Q: What do you mean?
A: Well, they told me that the only reason they came was to yell at me. I had punished them for not visiting with me by taking away their electronics and by not allowing them to take part in after-school activities.
Q: What was their reaction?
A: They said that their lawyer told them they would get our electronics back.
Q: Did the children speak to you about anything else?
A: My children described me as "a loser," "liar, lazy and stupid." The attorney for the kids sent me an email to my lawyer in which she said that the boys regard me as "the enemy." The youngest child was quoting passages from their mother's court documents as the reason he was mad at me.
Q: And why did you punish hem?
A: Because they were refusing to visit with me. I am in a no win situation. If I do nothing, I lose any semblance of a parent and would have to let the boys make all the custody related decisions for the rest of their lives. Alternatively if I move forward with my request for more time they will continue to see me as the enemy. I choose the second option. I will not let our boys believe they can do what they want, when they want in life much less that they have the discretion whether to follow the Court's orders or not.
Testimony of the Mother
Q: You did not support the father’s decision to punish the children?
A: He knows how much the children love their various extra-curricular activities. Prohibiting them from participating in soccer or any of their other sports activities would be devastating to the children, not to mention the impact that it would have on their relationship with their father. The children are smart and mature. If the Court were to impose even stricter punishment, they would most certainly deduce that it was because of their refusal to go on the weekend visits and that their father is forcing this issue with the Court. This would cause a further deterioration of their relationship with their father.
Q: What is your proposed solution to the children not following an Order of the court?
A: The father would yield better results and improve his relationship with the children if he listened to their wishes and tried to work with them to come up with a schedule or an expansion of time in a different way.
Q: Is it your opinion that the children's soccer and sports schedules are more important than the father's visitation with his children?
Q: Is this your text message that states that the father, by insisting on his visitation rights, was complicating the schedule of other families and 3 coaches?
A: Well, I might have been frustrated.
Expert Testimony on Issue of Punishment
Q: Is the taking away of privileges an effective punishment for children?
A: Privileges are well-known in the literature of parental discipline techniques. Taking away cell phones, grounding teenagers, taking away video games as tools to discipline children are effective. It is typical that 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. However, a parent cannot give in when your child begs, whines, or complains. If you do, you'll reinforce those negative behaviors. Stick with the consequence for the specified time period, even when it's hard to do so.
Argument of the Children's Lawyer
Your Honor, 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 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. And the Court should not punish the children if they choose to not visit with their father.
Argument of the Father's Lawyer
Your Honor, 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 punishments disappear.
When a child refuses to eat their vegetables, 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. The Court should make sure the children are punished for not following a Court Order.
The Judge's Decision
Ill Will of the Father
The father here is seeking to impose reasonable restrictions on his children until they visit with him and this Court will notdraw an inference of ill will from any parent's reasonable steps to seek a child's compliance with their reasonable — best-interests-directed — rules.
In a two-parent household only one thing prevents them from working: when the child says, " Mom, you can't do that, I am going to ask Dad to stop these rules." If the child detects that other parent caves and refuses to enforce the rules, the child gets what they want, one parent gets the child's approval and the other the child's scorn. In a post-divorce divided household, the same scenario plays out but the temptation for the favored parent to take the child's side is enhanced, especially if the result is not only scorn directed against their now distant former spouse but, as a corollary, the favored parent gets additional time with the children when they fail to visit with the other parent.
Holding Kids in Contempt
The Court has been unable to find a New York case dealing directly with whether a child can be held in contempt for refusing a visitation order. There appears to be a split on the question in other State courts -- Illinois has answered the question in the affirmative, while Alabama has refused to allow a child to be held in contempt. Regardless of authority, however, this Court believes it would be inappropriate to hold children directly in contempt, because it would be contrary to one of the main tenets underlying this decision - that children do not have the power, and in most cases the ability, to determine their own best interests. It is the parents that define best interests, and thus the parents that should face the consequences of refusing to ensure appropriate visitation.
Who Decides What is in the Best Interests of the Child?
The only answer to that question is that, under New York law, the children's best interests are defined by their parents.
When the oldest child turns 18, he can decide whether to visit his father but until that occurs, all three must visit their father as their parent agreed.
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