"The kids don't want to visit with their father / mother."
Judges hear this all the time, but they aren't likely to believe it. It doesn't matter if the kids say that Dad spends the whole weekend sleeping on the couch or that Mom spends her visitation time with her boyfriend, instead of the kids. The court will force the kids to go, and will hold the custodial parent in contempt if they don't. Why, you may ask? More to the point, "why do we have to go?" your kids may ask. The answer is as old as mankind itself.
Parents have rights over their offspring. Maybe these rights originated in the tribal days when parents prayed for sons to care for them in their old age. It also used to be that families were likely to stay together no matter what kind of jerk or witch the mother and father were to each other and their kids. It wasn't until 1874 that the first child abuse case was reported. Parents owned their kids, and what they did to or with their property wasn't anyone else's business. The case of a 9 year old who was repeatedly abused by her guardian began the slow change that culminated in our modern welfare laws. Animal abuse was already illegal, and it was the "ASPCA" who offered redress to Mary Ellen Wilson by arguing that she was an animal, and hence entitled to the court's protection.
Modern families don't stay together if the parents can't make a life with each other. In modern times, people don't have to stay together if they are unhappy in their marriages. However, society does not permit them to sever their ties with their children as easily. Since the children can't live with both parents full time, it the courts have to arrive at a compromise which gives both parents at least some opportunity to be involved in rearing their own children. This compromise, for better or worse, is the laws surrounding child custody and visitation.
If a child is being abused in either parent's home, it is possible that contact with the child will be limited by the court. What one judge considers abuse may not be what another one would be concerned about. Some judges have to see black, blue or red before custody of a child can be changed or his / her parent's visitation suspended. Some have to have proof of excessive drinking or elicit drug use to limit visitation. In one case I had, the judge severely limited the mother's time with her kids because a social worker reported that she was "depressed", and that some harm "might" result to the children unless her time with them was limited.
The unfortunate thing is that it is hard to prove some forms of abuse. A child can be psychologically injured without any outward signs of damage. A parent who teases, bullies or denigrates a child can be as harmful as a parent whose aggressiveness is physical. The courts can't assume that a person who is abusive or unkind to his / her spouse will necessarily mistreat his / her children. Thus, children are often forced to spend time with a parent they have reason not to like or trust.
The other side to the story is the parents themselves. Divorce is often so rancorous that the truth is impossible to detect. A parent who has a bad opinion of the child's other parent can lie and exaggerate the situation until the child is forced to conclude that the other parent is somehow dangerous or scary. Even subtile indicators, like facial expressions or tone of voice can tell the child that the other parent should be feared and that he / she is somehow untrustworthy. Many times, the child's fear of visitation is not so much his feelings towards the other parent as his fear that the parent who generally lives with him / her will be alone. Kids fear being abandoned themselves, and it is easy for them to attribute a custodial parent's reluctance to cooperate with visitation as a fear of loneliness. The visiting parent is the bad guy in this scenario because he / she is forcing the child to leave when he / she wants to stay to take care of or comfort the parent who is left behind.
Parents should be sensitive to the position they put their children in when they discourage visitation, either openly or more subtley. The child should not have to make the decision as to whether it is all right to love both of his / her parents. The child should be encouraged to feel and express his feelings based on what actually occurs in his life, rather than basing his reactions on what the adults around have said or done to each other. Divorce is hard enough on kids, demanding as it does that one parent is only an occasional part of the child's daily life. Until society develops a formula to separate the child's real needs and feelings from the anger and disappointment that often influence their parents testimony about them in a divorce, the kids will have to take their chances with the legal system. Happily enough, growing up with both parents is usually best for kids.
Copyright (c) 2009 Lucille Uttermohlen
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Lucille Uttermohlen has been a family law attorney for 27 years. She covers law, relationships and stories from her own practice at http://www.couple-or-not.com Lucille would love to hear from you at lucille@couple-or-not.com and she promises to write back.
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