Tis the season to be jolly and to argue with our teenagers! Just because you are divorced or separated doesn’t mean you get to avoid this special pleasure! But what to do when our teens refuse to comply with the terms of our hard won custody award?
For anyone with teenagers you understand the need to set and enforce boundaries. The older they get the more difficult it becomes, and divorced or separated families may have a special burden. Teens are masters of manipulation, and a divorce or separation provides a unique opportunity for teens to “divide and conquer”!
The most common question we get at this time of year is what to do about children who simply refuse to go to the other parent’s home in compliance with the terms of the custody award. When do kids get to make this decision?
Family Court Rule 22 states as follows:
In all matters relating to children, the family court judge shall have the right, within his discretion, to talk with the children, individually or together, in private conference. Upon timely request, the court, in its discretion, may permit a guardian ad litem for a child who is being examined, and/or the attorneys representing the parents, if any, to be present during the interview.
South Carolina law does not provide any other means for a child to state a preference regarding holiday visitation, or any other form of visitation. If a judge wishes to speak with children about visitation, it is up to the judge, but there is no requirement.
So now your 16 year old son, who is 6’1″ and 190 pounds, plays tight end for the Wando Warriors and can bench press 250 lbs refuses to get in the car to go to dads house for “Christmas 1”. What should you do?
Honestly, the option are very limited, but here are my thoughts:
Contempt of Court: You are required by the terms of a custody order to make your children available for visitation and do nothing to discourage visitation with their other parent. In fact, you should actively encourage visitation with the other parent. But your children are not part of the custody order and are under no legal obligation to follow its terms. Only a parent is bound by the custody order and only a parent can be found in Contempt of Court.
A finding of Contempt of Court requires that a parent “willfully” violate the terms of the court order. If you are doing everything you can to make your stubborn, ungrateful, argumentative and just generally hard to get along with teen available for visitation (and actually encourage it!) and they refuse to go, it is highly unlikely you will ever be found to be in Contempt of Court.
“Where a contemnor is unable, without fault on his part, to obey an order of the court, he is not to be held in contempt”. Smith-Cooper v. Cooper, 344 S.C. 289, 301, 543 S.E.2d 271, 277 (Ct. App. 2001)
Ask for Help: While there is much debate about whether our teens are more self absorbed than in the past, most of us have personal experience with our teens who think only of their own needs and wants. If they have made plans with their friends that conflict with your visitation schedule, you may be in for a nasty fight! Make your teenager available for visitation, encourage it, and then call (or email) the other parent and let them know what is going on. Often times offering the other parent an opportunity to drop in and see if they can get your teen in the car will end the matter!
Therapy: As master manipulators teens will often see the separation and divorce of their parents as an opportunity that they can exploit to their advantage. While lawyers will gladly take your money and litigate visitation issues until the end of time (and your financial resources), most family law attorneys are adversarial litigators and have no skills that will assist your family to resolve holiday visitation issue. 90% of the time visitation issues with teens can only be resolved therapeutically, if at all. Don’t waste your money in litigation without first making a good effort to resolve these kinds of problems with a qualified marriage and family therapist. You may find a few hundred well spent dollars will save you tens of thousands in litigation expenses.
Time: Time heals all wounds. If you are the parent with whom the teen does not want to visit, stay in touch: call, text, email, send cards, etc. Offer to meet together with a therapist in order to work through relationship issues. If your teen will not go with you, go to therapy yourself to work through the pain it is causing you, and how to deal with your teen when he or she eventually comes around.