ENFORCING WISCONSIN CHILD PLACEMENT (CUSTODY) ORDERS WHEN THE CHILD REFUSES TO FOLLOW THE ORDER

A Michigan divorce case has garnered a great deal of press in recent weeks. A family court judge, utterly frustrated by the children’s refusal to spend time with their father, ordered the children to spend their summer – and perhaps longer – in a juvenile detention center. The judge found the children in contempt of court for refusing to obey an order, and terminated the mother’s contact with the children for the summer. We are not privy to the details of the case, so we can’t make an informed comment on the judge’s remedy, other than to observe that it is extremely unusual and probably inappropriate, possibly counter-productive.

In our experience, it is sadly not unusual for one parent to work to alienate the children from the other parent, encouraging them subtly or openly to refuse to spend the court-ordered placement time with the other parent. It is not difficult to imagine the pain, frustration, and helplessness of the alienated parent. Of course, sometimes the children’s refusal has nothing to do with alienation by a parent, and everything to do with mistreatment or abuse in the other home. In this situation, however, the court must be presented with evidence of the mistreatment; otherwise there is no legal basis for a court to permit the children to refuse placement.

Judges vary in their responses to this situation. The Michigan case demonstrates an extreme interventionist approach, completely disrupting the family until the children comply with the order. Other judges go to the opposite extreme, basically throwing up their hands and announcing that they will not order a child to be physically forced to see a parent; this approach is relatively common as children near the age of majority. Most judges fall somewhere between these two extremes, utilizing other tools to try to address the underlying issues. They might order therapy for the children and the alienated parent, order the alienating parent to undergo a psychological evaluation, order that placement be supervised by a person trusted by the children, or order a temporary placement change.

In Wisconsin, the “Enforcement of Physical Placement Orders” statute, ยง 767.471, is intended to make it quick and easy for a parent who has been denied placement by the other party to get into court and obtain an order for compensatory placement time and fees, as well as other remedies. These remedies are of little help when it is the child who is denying placement. Often, however, courts utilize these tools to “encourage” a parent to ensure that a reluctant child follows the placement order. For example, a parent should impose consequences on the child for refusing to go to the other parent’s home, just as they would impose consequences for a child’s refusal to go to school or comply with household rules. With young children, judges tend to be more willing to hold the parent responsible for ensuring that the child sees the other parent. With older teens, courts may be less willing to hold a parent accountable for the child’s refusal.

At Wessel, Lehker & Fumelle we have experience with these difficult, intractable family situations. We have had cases in which judges ordered mental health evaluations and treatment, threatened foster care for the children, declined to enforce the placement order. In one case the judge took all of these positions at different times over the course of the litigation.

Our advice for parents facing this painful situation is two-fold. First, do not involve the children in the dispute or try to take the law into your own hands by physically forcing the children to go with you. Such efforts will inevitably come back to hurt you. Secondly, get legal assistance as early as possible, as soon as you encounter resistance or refusal from the children. The more entrenched the patterns and resistance are, the harder it will be to successfully interrupt them and get shared placement back on track.