You have your eight-year-old daughter all packed and ready for a week with her mother. You are supposed to hand her off within the hour, in compliance with the court-ordered child visitation schedule. Before she is in your car, though, she says she does not want to go to her mother’s house again. She says the house smells, and her mother’s new boyfriend looks at her oddly. Can you keep her from the parenting time?
Parenting Time & Best Interests of the Child
For that matter, what does Virginia law say when your ex-wife is saying your children do not want to see you? Can an 11-year-old, or an eight-year-old, or any minor, refuse visitation?
Visitation (or parenting time) is described and legally outlined under Code of Virginia Title 20, Chapter 6.1. It lays out the single overriding concern for every aspect of parenting time:
Best interests of the child
Under § 20-124.3(8), the court recognizes “the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.”
The court can hear a petition for a change to the visitation. Most Virginia Dads would prefer to not let the situation get that out of hand. Start by doing a little kid-positive digging.
Are There Reasonable Reasons for Non-Compliance?
If possible, you and your ex-wife should seek answers from your children as to why they do not want to comply with court-ordered visitations. Remember that they have a very rudimentary sense of what the court and law mean.
For very little children, be prepared for a mix of fact and fantasy, of past and present time. Your five-year-old may have been frightened by the sound of your furnace at the last visit, and is now convinced a scary dragon lurks in your home.
For older kids, expect social pressure to figure a lot in their calculations to refuse visitation. Your 16-year-old may be missing a school dance if she goes to your apartment in another town for the weekend.
Both your ex-wife’s attorney and your own would counsel you to work things out between the adults as much as possible, minimizing issues with the children. Give your daughter a break to attend the dance and swap weekends with your ex-wife. Make a phone video of the furnace to show your five-year-old in the comfort and safety of his mother’s apartment.
Try to remember that children’s reasonable reasons may seem completely insane to an adult. Conversely, some (perhaps a lot) of what you and your ex-wife do may be mysterious and insane to your children, so be prepared to explain things on their level.
Rocks and Hard Places
The entire Chapter 6.1 outlines visitation and custody, but runs smack into Chapter 6’s § 20-108, which tells the confused parent:
The intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court.
So which is it? You cannot allow the child to refuse visitation under § 20-108, or you can allow changes to visitation under § 20-124.3? Well, actually, it is both. Virginia law is not meant to confuse you, but it enjoys its subtleties. Sometimes Virginia men, especially stressed, divorced fathers, rush right past the subtleties.
Under § 20-108 the mother of your children cannot withhold the kids for any reason. If, though, the children’s mother can present the court with a legitimate reason to change visitation, under § 20-124.3, the visitation orders can be modified.
Child Visitation Modifications
So this is not really a squeeze play against you (or the mother of your kids, if the shoes are on the other feet). Sure, the kids can act up and suddenly decide they want nothing to do with you, but your wife must petition the court for a modification to child visitation arrangements.
The two of you may run into the unexpected resistance from your kids. Once is probably forgivable and can be chalked up to childhood whimsy, but if the children’s mother starts saying they refuse to see you every time you are supposed to get them, she needs to get her attorney to make such a change legal.
This provides you with a chance to get to the bottom of the problem. The court can interview the children (or, more accurately, designate a childcare or mental health professional to interview them) and, under § 20-124.3, take their wishes into account.
Your attorney, representing you during this motion, can push back against any rumors or wrong information their mother may have been giving the kids. Evidence can be brought before the court to refute her accusations that may have tainted the children against you.
Call Custody & Visitation Lawyers for Fathers
If you are confused about child visitation or parenting time, call 757-383-9184 to speak to The Firm For Men. You may also contact us online, but however you reach out to us, you will always be assured of finding a real Virginia family law firm representing men exclusively. We work hard to protect men’s rights in all aspects of family law in the Commonwealth.
