By: Stephen Plog
A couple of weeks ago, while browsing the news on the internet I happened upon a story regarding a Michigan custody case which left me speechless. My jaw dropped, I spilled my coffee, and instantly started pondering the ramifications the story would have if this kind of judicial nonsense existed in Colorado family law cases. Fortunately it does not. The specific news story related to a case in which a judge decided to put three Michigan children in a youth detention center (jail) for refusing to spend time with their father as per court orders. In all my years’ experience I have never seen this type of action taken in Colorado regarding visitation (parenting time).
Sadly, the custody attorneys at Plog & Stein, P.C. see cases in which children refuse to go with a parent for court ordered visitation. In these types of custody situations, there are various legal outcomes which can occur. Kids going to jail is not one of them. Generally the two scenarios we see are situations in which one parent has alienated the children from the other or has undermined the relationship between the other parent and the children. Conversely, we also see situations in which a parent has alienated the children from himself or herself due to various issues such as neglect, anger, substance abuse, or other mental health concerns.
In the first situation, the parent being denied his or her parenting time can seek relief under either C.R.S. 14-10-129.5, which relates to parenting time disputes and enforcement of orders. The aggrieved parent has various remedies available to him or her if it can be show that the other parent is frustrating parenting time. This can include make up time, modified orders, a fine, and contempt like sanctions, including jail time. If the court determines that there has been a violation of visitation orders, statute indicates that attorney fees shall be granted. Nothing irritates a court more than a parent preventing the children from seeing the other. Relief can also be sought via contempt of court proceedings, though enforcement under section 129.5 is the preferred method, with an easier burden of proof.
In the second situation, in which the children truly wish to forego contact with the other parent due to his or her behavior, or perhaps just unresolved issues, the parent with the children is left in a precarious position. It is difficult to balance the wishes and emotional needs of your children with the reality that you may be accused of violating court orders. With evidentiary rules at hand related to “hearsay,” going into court and just reiterating the statements of your children when defending against an enforcement motion is just not a viable strategy. Generally, when your children are refusing to go with the other parent, it is recommended to jointly seek counseling to see what is troubling the children and if the gap can be bridged. If cooperation from the other parent is lacking, it may be necessary to move for a modification of the visitation and perhaps the appointment of an expert to talk to the children and report their concerns to the court.
Regardless of which side of the equation you may be on, step back and reflect on the Michigan case. Children should not be punished for their feelings or the actions of a parent. That court got things wrong. Make sure you make the right decision when dealing with complex child custody matters. The experienced Denver family law attorneys at Plog & Stein, P.C. can assist through the most difficult custody situations.