Siblings Nicole and Jordan witnessed their father physically and emotionally abuse their mother on many occasions. Often the children intervened to protect their mother from their father’s abuse. In 2003, Nicole’s father beat her after she told her mother that her father had removed some documents from her mother’s car. This incident resulted in the issuance of a full stay away Order of Protection. In the eight years since that incident, the children have seen their father on less than ten occasions.
In in re J.R. v. N.R. Nicole and Jordan’s father petitioned for visitation. Nicole was seventeen and Jordan was thirteen at the time the petition was filed. From 2002 until the case was decided, the father filed at least sixteen petitions in Family Court against the mother. Both children vehemently opposed any relationship with their father. The Family Court denied the father’s application for visitation and held that no further petitions for visitation could be filed by the father without the permission of the Court.
In deciding to prevent further petitions for visitation by the father, the Court in found that forced visitation with their father would not serve the children’s best interest and would instead cause them great anxiety. The Court made the right decision but why did it take almost a decade for these children to be given a chance to move on with their lives?
Custody and visitation proceedings represent some of the most contentious and difficult cases that come before the Family Courts. These cases frequently drag on for years and have a detrimental effect on the children caught in the middle of legal battles between their parents. Some children in these cases do not want to visit with their non-custodial parent. The child’s desire to terminate contact with the non-custodial parent can be for many reasons. Often there has been a history of domestic violence, substance abuse or the non-custodial parent has emotional or physiological problems which the child is reacting to. Courts in these types of cases seem too willing to continue to force children to attend supervised or therapeutic visitation with the hope that the child will eventually bond with the non-custodial parent. Only in cases of extreme abuse, see David V v. Rosalind W, 879 N.Y.S.2d 484 (2d Dep’t 2009) (where father sexually abused sibling of subject child in the presence of subject child) or where the child is approaching the age of maturity, see Sassower-Berlin v. Berlin, 871 N.Y.S.2d 355 (2d Dep’t 2009) (where subject children were sixteen years old) do courts seem willing to completely deny visitation.
In adjudicating a visitation proceeding, the most important factor to be considered by the Family Court is the best interests of the children. Koppenhoefer v. Koppenhoefer, 159 A.d.2d 113 (2d Dep’t 1990). Although the rights of the parent are important, those rights must give way to the rights of the child, where it is in the best interest of the child. Lincoln v. Lincoln, 24 N.Y.2d 270 (1969). The courts need to re-evaluate the damage these prolonged proceedings are causing children and should be more willing to acknowledge that continued contact with some non-custodial parents is not in the best interests of the child.
Although a relationship with both parents is important for a child’s development, a child who lives an otherwise happy and well adjusted life should not have to endure the pressure of a forced relationship with their non-custodial parent where they have legitimate reasons not to want such a relationship. Often these types of cases are resolved only once the child nears the age of majority. By that time, the child may have had to endure years of court involvement in their life.
Where children have legitimate reasons for not wanting to develop a relationship with their non-custodial parent, where there is no evidence that the custodial parent is alienating the child from the non-custodial parent and where good faith attempts to foster a relationship between the child and their non-custodial parent have failed, the courts need to be more willing to acknowledge that it is in the best interests of the child to allow them to move on with their life without a forced relationship with their non-custodial parent.