At times, parents who did not obtain primary custody of their children in divorce actions or other custody proceedings face reluctance or refusal of their children to visit with them, contrary to the parenting time provisions of their custody orders. In some cases, the children’s negative attitudes result from persistent acts of alienation by custodial parents. The noncustodial parents may respond to their loss of parenting time by filing contempt petitions against the custodial parents or actions to modify child custody. This article addresses whether, and the extent to which, courts in such proceedings will respect the children’s wishes regarding visitation, including in cases involving parental alienation.
In general, two factors principally influence courts’ evaluations of children’s negative visitation wishes: 1) age; and 2) the presence or absence of parental alienation.
Georgia public policy recognizes that a child’s best interests usually favor a close and continuing parent-child relationship with both parents.(1) Nonetheless, state law permits a child aged 14 years or older to “select the parent with whom he or she desires to live,” unless the child’s selection is determined to be contrary to his/her best interests.(2) Likewise, a child aged fourteen or older can elect not to visit with a noncustodial parent, but only upon entry of a court order modifying the noncustodial parent’s visitation rights, and only where the court does not determine that the child’s election is contrary to his/her best interests.(3)
A non-visitation election by a child aged fourteen or older presumably will be deemed contrary to the child’s best interests where the election results from interference or alienation by the custodial parent.(4). Where the alienated parent’s own misconduct created the circumstances, however, a court more likely will accept the child’s decision and forego forced attempts at reunification. For instance, one court accepted the decision of a child over the age of fourteen to visit with her noncustodial father only at times that were mutually agreeable, notwithstanding the father’s claims of parental alienation by the mother. The court found that the child was living a life full of stress, anxiety, and turmoil resulting from the divorce decree’s inconvenient visitation arrangement, and that the father’s misbehavior was a “huge contributor” to the breakdown of his relationship with her. Specifically, the father had ignored his fragile relationship with his daughter and instead used threats, numerous court filings, repeated police involvement, and a sledgehammer-like “I’m the boss of you” attitude, to try to force a relationship with her and force her to behave exactly as he demanded.(5)
In cases involving children below the age of fourteen, the above-referenced public policy usually will trump children’s wishes.(6) As the Georgia Supreme Court has put it: “The desires of children under 14 years of age in not wanting to visit their [noncustodial parent] is not sufficient to deny [the noncustodial parent] his right of visitation.”(7) Rather than permitting an estrangement between a child and one parent, a court usually will issue orders aimed at restoring a healthy parent-child relationship. Such orders include forced reunification therapy between the child and noncustodial parent and/or temporary or permanent changes in custody to remedy the situation.(8)
(1) O.C.G.A. § 19-9-1(b)(1)(A); O.C.G.A. § 19-9-3(a)(3)(N); Shook v. Shook, 242 Ga. 55, 56(2), 247 S.E.2d 855 (1978); and Interest of A.R.B., 209 Ga.App. 324, 433 S.E.2d 411 (1993). (2) O.C.G.A. § 19-9-3(a)(5). (3) See Worley v. Whiddon, 261 Ga. 218, 403 S.E.2d 799 (1991); and Prater v. Wheeler, 253 Ga. 649, 322 S.E.2d 892, 893-894 (1984). (4) See generally Doritis v. Doritis, 294 Ga. 421, 754 S.E.2d 53, 57(5) (2014); and Worley, supra. (5) Dallow v. Dallow, 299 Ga. 762, 791 S.E.2d 20 (2016). (6) Prater, supra, 253 Ga. at 650, citing Shook, supra, 242 Ga. at 56(2). (7) Shook, supra, 242 Ga. at 56-57(2). (8) See, e.g., Wilson v. Wilson, 338 Ga.App. 891, 892-893, 792 S.E.2d 139 (2016); and Bankston v. Warbington, 332 Ga.App. 29, 31, 771 S.E.2d 726 (2015). See also Perkins v. Hayes, A20A0204 (Ga. Ct. App., July 2, 2020); and Pate v. Sadlock, 814 S.E.2d 760 (Ga. Ct. App. 2018).