Search Corbin's Blog

Wednesday, January 28, 2015

DUTIES OF A PARENT OF A CHILD WHO REFUSES TO VISIT THE OTHER PARENT - A CASE OF FIRST IMPRESSION

Mom and dad marry in 1997 and divorce in 2003. They have one child. This case was highly contentious. Multiple filings about custody ensue.

In 2013 after their daughter reached 14 years of age, mom stopped bringing her to visitations. Daughter signed an affidavit with numerous complaints about dad and said she did not want to visit him. Mom filed multiple pleadings. Mom had remarried. As part of the flurry of new pleadings, her new husband petitioned for stepparent adoption.

Dad filed motion to hold mom in contempt for failure to comply with parenting plan after several orders directing the visitation schedule in the parenting plan to be followed -- and mom never brought the child to visit. Mom stated that she left it up to the child and the child did not want to see dad.

The trial court found mom in contempt and issued an order finding that she had committed Rule 11 violations and would be required to pay dad's attorney fees. The trial court also ordered that mom had to obtain the court's permission to file any further pleadings.

Mom appeals. Affirmed and remanded for the trial court to determine attorney fees, as the appeal of the Rule 11 finding was not a final order without the determination of attorney fees.

In this case of first impression, the Supreme Court found that when a parent fails to make reasonable efforts to require a recalcitrant child to attend visitation, the parent has not made a good faith effort to comply with the parenting plan and can be held in contempt.

Ordinarily, contempt orders are not appealable. However in family law cases, they are appealable if issued with an order affecting the substantive rights of the parties. Here the trial court ruled on numerous substantive issues. The trial court may only be reversed for a blatant abuse of discretion, a very high bar. The Supreme Court found no blatant abuse of discretion.

Here is a quotation that summarizes the Court view:

"¶34 A parent is not "a powerless bystander" in the decisions and actions of a child, and has "an obligation to attempt to overcome the child's resistance" to visitation. Rideout, 77 P.3d at 1182. A parent has "a great deal of influence over [a child's] ideas and feelings," which carries with it an affirmative responsibility to nurture in the child a positive regard for his or her other parent. Ermel, 469 A.2d at 685. Although we recognize the difficulty, at times, of compelling a child's compliance with parental—or judicial—directives, a parent must make a good faith effort to do so."

Marriage of Marez 2014 MT 333

No comments:

Post a Comment