Withholding a Child from Another Parent

What Happens When a Child Refuses to Attend Court-Ordered Parenting Times?

Picture the following situation:

You and your spouse are in a high conflict legal battle over your only child, who lives with your spouse. At the insistence of a case conference judge, you and your spouse consented to an order for your child to spend Christmas with you this year. However, on Christmas eve, your child calls and tells you that he does not want to spend time with you and will not be attending for Christmas. What would you do in this situation?

Jackscha v. Funnell

In the case of Jackscha v. Funnell, the court warns litigants that they will not look kindly towards parents who do not take reasonable steps to ensure a child complies with the terms of an order.

In Jackscha, Mr. Funnell brought a contempt motion against Ms. Jackscha, claiming that she had breached their court order which stated that their son Josh was to have Christmas dinner with Mr. Funnell. Mr. Funnell took the position that Ms. Jackscha was continually trying to undermine his relationship with Josh, and that Josh’s phone call on Christmas day claiming that he did not want to spend time with Mr. Funnell on that day was a clear example of this.

Clear and Unequivocal Court Orders

The court found that there was a clear non-compliance with the terms of a clear and unequivocal order. It was implicit that Ms. Jacksha could ensure Josh’s compliance with the order and ought to have taken reasonable steps to ensure compliance, but she did not do so. Most importantly, the court stated that at minimum, a parent responsible for caring for a child is expected to do the following when a child refuses to comply with a parenting order:

1. Have a discussion with the child to determine why he/she does not want to go;
2. Communicate with the other parent to advise of the difficulty and discuss how it might be resolved; and
3. Offer the child an incentive to go, or some form of discipline should he/she continue to refuse.

Ultimately, Ms. Jacksha was found in contempt and was ordered to pay $3,000.00 in costs to Mr. Funnell.

Compliance is Required

In short, the courts expect parents to follow their orders. If a child is refusing to attend at their court ordered parenting time, the court is going to want to see concrete evidence of the parties taking active steps to ensure compliance of a court order. Anything less could draw the courts’ ire and open parents to a contempt order and costs consequences.