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A Child’s Refusal to Follow the Court Order Was Insufficient to Deny Parenting Time to the Father

Posted on December 9, 2019

In Matter of Emanuel J. v Zielka K., 2019 N.Y. Misc. LEXIS 5624, 2019 NY Slip Op 51667(U), 65 Misc. 3d 1217(A), 2019 WL 5408460, the parties were granted joint custody, with the mother having primary residential custody and the father having visitation.

In 2017, the father filed a petition to modify and enforce the custody order, stating the mother was being noncompliant. The father alleged the mother was late to or cancelling visitation, withholding information, harassing him in presence of children and calling the cops on him when he tried to pick up the children.

The mother stated the father had been abusive toward her and used corporal punishment against their 17 year old son.  Both the son and the parties’ 10 year old daughter, described the father as hostile and abusive during visitation. Both children refused to go to visitation with the father and the mother allowed this by just cancelling the visits. The daughter further stated she was scared of her father and did not want to go on visits, believing she would be unsafe. However, the court concluded that these statements were not from the daughter, but from her mother or brother, citing her use of adult expressions about the father and her inability to specify why she felt unsafe with her father.

The court decided to issue a new order, modifying the original custody order.  The changes to the order included requiring both parents to attend parenting classes, that the mother enroll and pay for the daughter to be in therapy, that the son not attend exchanges of the daughter for visitation unless he was joining visit, that the son determine if he visits the father and that the mother enforce the daughter visiting her father according to the original visitation schedule. If the parents do not follow the court order, punishments may include fines, an immediate change of custody or the incarceration. This means that if the daughter does not go to visits with her father her mother could go to jail.

Courts believe that it is in the best interest of children to have a relationship with both parents unless there is a large amount of evidence showing the relationship is harmful to the child. The children’s wishes influence a court’s decisions; however those wishes do not determine the decision. In this case, the court followed the son’s wishes to not visit his father but not the daughter’s wishes, instead forcing her to visit the father.

If you want to change your custody order, you need to make sure you have an attorney who knows the law. The Law Office of Vivien I. Stark, P.C. is a New York City family and matrimonial law firm with over thirty years of experience. If you want to modify your court custody order, please call (212)349-1600 now to schedule an appointment to speak with Ms. Stark about your case.