An unemancipated person under the age of 18 does not have the ability to make their own residential decisions. The parents (and sometimes the court) are the ones who are empowered to make those and most other decisions for the child. Once a person turns 18, they are an adult and can make their own decisions.
This does not mean, however, that the child may not have a voice. Under Washington State law, when making residential decisions, the court may consider “the wishes of a child who is sufficiently mature to express reasoned and independent preferences.” In other words, it is not about age: it is about maturity. The wishes of a 17-year-old child who wants to live with a particular parent because that parent will buy them a car shouldn’t carry much weight, but the wishes of an 11-year-old who believes one parent provides a more stable environment could carry a good deal of weight.
The information about a child’s wishes will often come in through the report of a Guardian Ad Litem or Parenting Evaluator appointed by the court. Although it is permitted, generally, the courts do not interview a child directly.
As a general rule, the child will never be specifically asked to state a preference. The courts frown on putting the child in a position where they have to take sides in their parents’ dispute, i.e., choosing which parent has their loyalty. A properly done interview will give the child space to express their own feelings or preferences if they want to do that. Some children feel very strongly that they want to be left out of any decision making (they don’t want to be disloyal to either parent). In contrast, other children feel very strongly that no decision should be made without consulting them and may be very vocal about their preferences.
A Look at What Happens When a Child Refuses Visitation
The court’s order detailing parenting time and legal decision-making must be adhered to by both parents. The bottom line is the court’s order is a legally binding agreement. If a parent skips his or her parenting time, the contract has been violated. Even failing to deliver a child to the other parent on time for their scheduled parenting time is a violation of the parenting agreement. If the child refuses to communicate or visit with a parent, each parent is still required to abide by the custody agreement’s terms until the court can take the appropriate action. If the parent still desires to visit with the child in question, he or she can request the court enforce the parenting agreement through mandatory visitation.
In Some Cases, the Child Rightfully Declines Visitation
Though it is effortless to chalk up a child’s refusal to visit with a parent as immaturity and emotional outrage stemming from the divorce, there are some situations in which this refusal is justified. If you believe it is in your child’s interest to refuse visitation with your former spouse, the best approach is to file a family court lawsuit to alter the custody agreement. If your matrimonial attorney can provide convincing evidence to show your claim has merit and the court agrees with you, the judge can eliminate the required visitation. The judge might also decide it is appropriate to alter the legal decision-making part of the agreement.
Modifying a Custody Agreement
If your child’s desires are the main reason to request the modification of your custody agreement, the court will send a special investigator to meet with the child. This way, the child does not have to address the court directly. The interviewer will attempt to understand the child’s reasoning for favoring one parent and refusing visits with the other. These findings are presented to the court in a report.
A court hearing will be conducted to provide you with the opportunity to show even more evidence as to why the child’s preferences are grounded in reason. Though verbal testimony will bolster your argument, the presentation of physical evidence will likely sway the judge’s decision in your favor. For example, if you can provide evidence, your former spouse physically abused the child, your request for alterations to the custody agreement will be taken seriously. The judge will ultimately determine if it is prudent to modify the custody agreement to serve the child’s best interests. Find the right matrimonial attorney for this legal battle, and you stand a much better chance of emerging with a fair result for your child.
Chad Foster is a trusted Washington lawyer serving Snohomish and King counties with an office in Bothell. Contact us today to discuss your legal issue.