We hear it all the time. A child says “I don’t want to visit; do I have to go?” They may be pouty, upset, or straight-forward about it. How do you, as the primary parent, respond? You may have personal feelings about your child choosing to visit with their other parent, but you still want to know the legal answer. How is this handled in the State of Georgia?
Visitation election is not the same as child custody election.
Custody versus Visitation Election.
I recently wrote about new case law in the State of Georgia for children over a certain age to make the decision regarding which parent they would like to live with. However, under the law, in the State of Georgia and elsewhere in the country, children do not have the right to pick and choose visitation. The visitation schedule is a court order and can be enforced by contempt.
For example, courts in Michigan and Illinois have jailed older children for refusing to visit. In Kentucky and Georgia, judges have jailed parents for refusing to allow their children to visit even if it was the child’s decision. In the case Shook v. Shook, the Georgia Supreme Court agreed that the desires of children are not sufficient to deny the other parent his or her visitation, absent other circumstances. If there are other reasons, the custodial parent should file to modify visitation. If there are not, you’re responsible to tell your child they don’t get to pass on visitation and to enjoy time with mom or dad.
If other circumstances appear that can benefit from counseling, parents are encouraged to take that step. It could also be a situation to be discussed between you and the other parent to address the issue directly.
But if these circumstances have a real and material impact on the child’s physical well-being or long-term emotional well-being, then you need to contact your lawyer and file to protect your child.
What Should I Do if My Child Does Not Want to Visit?
When there is no other reason your child does not want to participate in visitation other than personal preference, it needs to be worked out with the child and the other parent. In the end, the child will need to spend time with their non-custodial parent. A two-household family is full of compromises and not every decision is perfect. Children’s visitation with their non-custodial parent needs to happen at the minimum ordered by the court.
If the child’s hesitance is based on legitimate reasons, but nothing that would result in physical harm or long-term emotional harm or trauma, you’ll need to have an open and honest conversation with your child and their other parent. If the other parent doesn’t cooperate, and these other issues are important, even if not physically or emotionally harmful, contact your attorney. An experienced attorney can work out the problem in a more formal manner before having to file a modification lawsuit. If we cannot, we would file a modification motion.
If the reason your child doesn’t want to go to visitation is due to physical harm or emotional trauma, contact your attorney immediately.
Children must not be put in a situation that will traumatize them or in which they are neglected or unsafe.
Visitation and Custody Under Georgia Law
Georgia law does not give children the right to elect if they want to visit with their other parent. It’s important to note the difference between child custody election and court-ordered visitation. As a parent, you need to drill down to the reason your child doesn’t want to go. In most circumstances, reinforcing parental rules will be enough. In cases where there are real circumstances, you’ll want to discuss the situation with an attorney to determine what legal steps to take to avoid getting in trouble and to determine what is best for the children as it relates to the law.
We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone.