This is a difficult issue for parents which comes up on a regular basis. There can be many reasons, however, for a child not to want to go on a visit with the other parent. Some of those reasons may be good reasons and some of those may be poor reasons.
At times, a child may be actively or inadvertently telling each parent what they want to hear about whether they want to visit with the other parent. Some children are reluctant to visit the other parent simply because their household rules are slightly different or perhaps more strict.
The first question is whether there is an existing court order for parenting time. If there is not an existing court order, then a parent does not have to allow visitation. If a court order is in place, then the court order must be complied with or the person who violates the order may face consequences from the court in the form of contempt.
The Indiana Parenting Time Guidelines also clearly provide that a child’s hesitation or refusal to go is not an acceptable basis for denying parenting time. Although the child’s wishes may be a consideration for the court in determining custody under Indiana Code 31-17-2-8, that statute does not provide a child with the unilateral right to cancel visitation. The child’s wishes are simply one of a number of statutory factors the court can consider.
The only person who can modify the court order is the judge. At times, various third parties (including counselors, teachers, or law enforcement) may suggest that a parent deny parenting time to the other parent. Although a court may be more sympathetic to a denial of parenting time based upon a recommendation from a third party, none of these parties have the authority to authorize the violation of a court order.
At times, child protective services can make recommendations about parenting time as part of their investigation into child abuse or neglect, but unless child protective services initiates an action, they do not have the authority to actually modify the order. A court may be less likely to make a finding of contempt, however, if the denial of parenting time was based upon specific recommendations from child protective services.
Suppose your ex is entitled to scheduled parenting time, but when they show up to pick up your child it is clear that they are drunk or have been using illegal drugs. Do you have to let your child go with your ex?
Clearly, if your child is in danger you do not (and should not) let your child go with your ex. If your ex becomes demanding, or threatening, the best course of action is to contact law enforcement. You should also contact your lawyer as soon as possible to help document this incident, and to get legal advice regarding what additional steps should be taken.
A parent who fails to comply with the court order without good reason faces a range of potential penalties from the court. The court may, and likely will, allow the person who lost parenting time to make up the time that is lost. The court may award the other parent their attorney fees for having to go to court to enforce the parenting time as ordered. In extraordinary circumstances, repeated violations of the court’s order may actually be a basis to modify the custody arrangement and take custody away from the parent who denies parenting time.