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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 86599
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Can a non custodial parent out of our state insist on a visitation/trip, that the minor c

Resolved Question:

Can a non custodial parent out of our state insist on a visitation/trip, that the minor child do not want?
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. Can you please tell me:

1) What state were the original child custody orders in?
2) What parent lives in what state, now?
3) How old is the child, please?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

1) Original child custody state is California


2) Custodial parent ( my daughter) now lcurrently lives in Oregon state. The father lives in Iowa.


3) the child is 10 years old.

Expert:  Ely replied 1 year ago.
Thank you, friend. Apologies for the momentary wait while I am typing out the answer...
Customer: replied 1 year ago.

Hello? I just need a one time answer and not a monthly membership?


Theresa

Expert:  Ely replied 1 year ago.
Here, the answer is "mixed" in that it is part good news, and part bad news. Let us begin with the bad news first.

There is a famous US Supreme Court case that states that parents must enforce visitation and do everything reasonable to ensure that the children are taken to the visiting parent even if it means "dragging them out to the vehicle by their feet." That is not verbatim, but pretty close to it. Law students laugh at that quote, but it is true - parents are supposed to enforce visitation. You are expected to do everything reasonable to ensure that the child visits, even if they do not want to. Now, that is the bad news.

The good news is that you have to do everything reasonable. That leaves room for interpretation and subjectivity. In reality, the Court does not want the child to have a panic attack when taken to see their visiting parent. So even if the father files a contempt charge, the custodial parent has (arguably) an affirmative defense if they can illustrate that the child was simply having a fit, a panic attack, and could not be put on the airplane - period.

If so, then the Court is not likely to hold the mother in contempt, although it may come up with another way to have visitation. Is the child afraid of airplanes? A drive, then. Perhaps meeting half-way, or the father picks him up. Is the child afraid of visitation? Supervised visits then, perhaps, or no overnights with the father coming to the child instead of vice-versa.

The Court is not inflexible, and is guided by "the best interest of the child." I have Judges come up with some very complex ways to work a problem out. In addition, the same end result may be reached by the custodian filing a modification petition, seeking to modify the visitation since it is not working.

So someone in your situation may wish to do the following:

1) brace for a possible contempt motion, but have the affirmative defense of the panic attack (gather witnesses, evidence, etc). Be prepared for the Court to come up with another scheme to work visitation; or

2) file a petition to modify custody orders, seeking to amend the visitation matter due to this, and eventually having the Court come up with a solution as in the first scenario.

You are going to ask if the visitation can be curtailed completely? Not without good reason (abuse/neglect/danger thereof, etc), because the Court sees parent/child relationship as sacrosanct and will attempt to save visitation if it can.

I hope this helps and clarifies. Best of luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 86599
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 4 other Family Law Specialists are ready to help you

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