DO I HAVE TO FORCE MY 13-YEAR-OLD TO GO TO HER DAD’S HOUSE?

We currently have a four-day rotation for schedule. My daughter goes to school near my home and wants to live Monday through Friday and every other weekend at my house and every other weekend at her dad’s house. My ex and I share legal custody with me having tie breaking authority.

ANSWER

Until a Court Order is modified, you are obligated to follow it. If you do not comply with the Court Order, then you could be held in Contempt of Court. If held in contempt, you could be ordered to pay the father’s attorney’s fees and the father could be granted “make-up” time to compensate for the Court-ordered access that he was denied.

Additionally, the Court wants to see evidence that parents are encouraging a relationship between the child and the other parent. You are certainly obligated to encourage your child to see her dad. The Court’s viewpoint is that parents often have to force children to do things that they do not want to do (i.e. go to school, do their homework, attend medical appointments, etc.) and that it is not the child’s choice as to whether or not they visit with their other parent.

However, depending on the reason why your child does not want to see the other parent, you may be able to establish a “material change in circumstances” and could petition the Court to modify custody. The child getting older is not an inherent material change in circumstances. Some examples of material changes include: a parent moving a distance away where shared physical custody is no longer feasible, the child is not getting to school on time, the child is visibly distressed due to the number of transitions, etc. You should consult with an attorney to discuss the specific facts and circumstances of your case to determine the likelihood of success of modifying physical custody.

Preference of the child is one of the many factors that the Court considers; however, it is certainly not the only factor. At age sixteen, a child is permitted to petition for a modification of their own custody. Most judges place great weight on the preference of sixteen and seventeen-year-old children. If you do file for a modification of custody, you could request that your thirteen-year-old testify. If the Court grants your request, it is likely your child would either (a) speak to the Judge in their Chambers or (b) would speak to the Judge in the Courtroom while on the record but neither your nor the other parent (or your respective attorneys, if you are represented) would be present. The Judge would have to make a finding that your child has “considered judgment” in order to consider their preference. Considered judgment refers to a well-thought out, meaningful reason for the child’s preference.