Can a court order a parent to impose discipline on children who voluntarily refuse to engage in court-ordered visitation with the other parent? Yes, said Monroe County Supreme Court Justice Richard A. Dollinger in his September 18, 2020 opinion in Matthew A. v. Jennifer A., enforcing a separation agreement’s schedule. The parents had determined what was in their children’s best interests; it was the Court’s job to help them “drive the bus,” using the parents’ authority to impose discipline on children, as well as the Court’s contempt powers, to enforce that schedule.

The parties were the parents of three boys, 10, 12 and 14, who resided primarily with their mother under a separation agreement that was less than two years old. Because of the distance between the parents’ homes, the father’s agreed-upon one midweek dinner with the boys was not specified. However, the agreement provided that if the father moved closer to the mother’s home, such would constitute a substantial change in circumstances permitting the father to seek a modification.

A year after the divorce, the father did move closer to the mother’s home. The father filed a motion seeking to expanded his alternate weekend time with the children to include Sunday overnights. He also sought to hold the mother in contempt for her alleged failure to follow the original schedule. For her part, the mother filed her own visitation modification petition seeking fewer visitation hours alleging, “the children’s wishes have changed;” the children did not want to have any dinner visits with their father if they had organized activities after school.

At a preliminary appearance, Justice Dollinger warned the mother that he was ordering the mother to restrict the children’s privileges and access to extracurricular activities if the children continued to fail to attend visitation. Justice Dollinger warned that he could hold a residential parent in contempt if the parents failed to strictly enforce the disciplinary restrictions set forth in a court order.

The interim house rules ordered by Justice Dollinger provided that:

if the parties children do not go with the father for his weekly dinner visit . . . then [the mother] is directed to remove and not let them play any portable devices (phones, tablets, computers) from the children; discontinue any extracurricular activities for the sons; not transport them or let anyone else transport them to any events other than school or church; prohibit them from visiting any friends or relatives or having such visits in her home; restrict the telephone conversations with anything other than their father until the children attend the weekly visits with their father.

Justice Dollinger also noted that the mother’s only objection to the father’s requested Sunday overnight was that it would upset, to some extent, the sons’ routines. However, Justice Dollinger granted that relief on an interim basis, holding, “Preservation of the sons’ routines does not trump a father’s right to spend time with his sons, especially when there is no evidence that the minor disruption, caused by a single additional night with their father every two weeks, would adversely impact the sons.”

The sons refused to participate in this extended overnight on Sunday evening. The mother told the father on two occasions when he arrived to take his sons for the weekend that the boys were not coming.
Indeed, the sons told their father that the only reason they came to midweek dinners with him was to yell at him, call him names and to get their electronics back.

The father saw himself in a no-win situation. If he abandoned to efforts in court, he would lose any semblance of being a parent, in effect letting the boys make all the custody-related decisions for the rest of their lives. The father also understood that if he moved forward in court, the boys would continue to see him as the enemy.

The father chose the second option. He would not let the boys believe that in life, they could do what they wanted, when they wanted, much less that they had the discretion whether to follow the Court’s orders or not.

The father then sought a reduction in his child support obligation and to confine the boys to their rooms “all day, every day” for all times other than meals if they continue to violate the court-ordered schedule.

The mother argued that the father would “yield better results and improve his relationship with the children if he listened to their wishes . . . .” She stated:

Similarly, he knows how much the children love their various extra-curricular activities. Prohibiting them from participating in soccer or any of their other sports activities would be devastating to the children, not to mention the impact that it would have on their relationship with their father. The children are smart and mature. If the Court were to impose even stricter punishment, they would most certainly deduce that it was because of their refusal to go on the weekend visits (they have gone on the dinner visits) and that the Plaintiff is forcing this issue with the Court. This would cause a further deterioration of their relationship with their father.

In response to the father’s motion for increased visitation, the mother had challenged the father’s contention that his moving closer to her residence constituted a substantial change in circumstances warranting a modification of the separation agreement’s parenting schedule. The Court, however, held that such already had been determined by the parties’ separation agreement, itself.

Justice Dollinger held that under their agreement, these parents had determined what would be in the best interests of their children. On this judicial application to modify the parenting schedule, the fundamental issue was who was to decide the best interests of the children.

In New York, there is no doubt of the answer to that question: despite what teenagers — or their attorneys — say. The first step in defining the best interest of children is to return to their parents, who as joint custodial parents in this case hold the final decision-making authority. New York is a parent friendly state: our courts routinely note that it is in a child’s best interests to have regular and meaningful contact with both of his or her parents . . . . The New York courts do not allow a judge to substitute his or her judgment for those of parents unless special circumstances exist, usually the inability of the parents to agree on the best interests of their children. But, once parents have exercised that power — to agree on what exposure the children should have to each parent — the New York courts must decline to intervene further unless there is a substantial change in circumstances.

By their separation agreement, the parents did determine that if the father moved closer, the best interests of the children would call for further consideration of visitation. Here, the mother sought “to overrule New York precedent that gives parents the presumptive determination of their child’s best interests,” suggesting that the father should negotiate his new visitation schedule with the children. The Court “rejects even the supposition behind that claim.”

Absent extraordinary circumstances warranting court intervention, visitation — parents’ access to their children — is first and foremost an issue negotiated between those self-same parents. . . . It would flip parenting on its head if this Court even suggested that children had the power to negotiate visitation with their parents. In even suggesting that her children should “negotiate” their best interests in the interaction with their father, the mother abandons her role as joint parent.

Children, even those entering teenage years, are not parents or even adults. They do not get to decide their best interests: the parents make those decisions.

Justice Dollinger granted the father’s application to expand his alternate weekend visitation to include Sunday overnights and fixed midweek dinners for Wednesday nights. The Court held the parents “drive the bus”: decisions until their children turn 18.

Justice Dollinger moved on to recognize that compelling children to comply with reasonable rules and restrictions involve techniques parents have used “since the days of Methuselah (if not before).” The easiest rule is to threaten to take away privileges:

driving for older children, access to “screens” for junior high school students, permission to visit friends, sports camps, extracurriculars and other pursuits that children — of all ages — enjoy. When these privileges are threatened by both parents, the child is confronted with no alternative: either comply or do without. The child often loudly complain. Slammed doors, vulgarities muttered under their breath, appeals to grandparents or other relatives are common tactics to weaken parental resolve. But, eventually, the child, weighing the often easier consequence of compliance with the threatened continued personal disappointment and distress of non-compliance, finds that accommodation is the best alternative. The child follows the rule and the threat recedes. When the threatened consequences fail to achieve compliance, parents, united in their purpose as joint custodians of the child’s best interest, are left with no alternative: the penalties are imposed until compliance occurs. A stubborn child may be willing to suffer the consequences until parental resolve weakens. But, if that occurs, the child is now emboldened and any future threats of consequences for non-compliance may easily be shunted aside with a notion that the child can “wait-em-out” and eventually get their way. In the former disciplinary scenarios, using our parlance, the parents drive the bus — they have determined the child’s best interests. In the later scenario, when parents concede to the child’s refusal, the child drives the bus and the child decides their own best interests as superseding that choice by their parents.

Justice Dollinger recognized that these scenarios were complicated and divorced households, when one parent seeks a child’s compliance with certain rules and the other does not support imposing the rules.”

Here, it became the job of the Court to find the tool to be used to enforce compliance by the children. The Court recognized that it would not be appropriate for the Court to order the children to comply under threat of contempt. Therefore, the logical step was to require the mother to enforce the best interest of the children by requiring her, as the primary residential parent to take away the privileges and restrict the children’s activities until the children comply with the court order. The Court determined that it could impose reasonable rules on the children when the and in the residence of the custodial parent.

The Court noted that through their attorney, the children offered no justification for their refusal to visit with their father. They simply did not want to have someone dictate their schedule.

The Court was not being asked to impose house rules for the children in the residence of each parent: fixing bed and meal times, requiring a child to brush their teeth, make their bed, pick up their room, visit their grandparents, etc.. When a child is in the residence of a parent, the parent can impose reasonable rules for child behavior. Here, the Court was only acting to compel the children to “take time to visit with their father as their mother and father agreed the father should have. Once that occurs, the restraints imposed by this Court disappear.”

Justice Dollinger pointed out that he was not ordering the mother to guarantee that the children attend visitation, nor did it seek to hold the children, or the mother, in contempt for the children’s refusal to attend. Rather, the Court simply required the mother to take disciplinary steps within her control until the children visited their father.

Accordingly, the Court extended the interim rules expanding them to provide that the mother would be prohibited from signing any permission slip or granting any other approval for the oldest son to be employed; clarified that the mother Could permit the children to engage in runs or ride bikes, provided they do not stop or stay at any location with their peers or other family members, and allowed the mother to drive the children to their haircuts in any dental or medical appointments as necessary, provided she gave the father 24 hour notice of the appointment and allowed the father to attend.

The Court found the mother in contempt for her willful disobedience of the interim rules, but allowed the mother to purge the findings if she paid the first $7500 in family reunification therapy costs, with the parents equally sharing the costs thereafter. The Court also awarded the father counsel fees and costs.

Justice Dollinger also held that the children’s refusal to spend time with their father had no reasonable justification, other than not wanting to visit. That constituted an unanticipated and unreasonable change in circumstances sufficient to justify a reduction in child support. Therefore, the father’s child support obligation was suspended until the three sons participated in the court-ordered visitation plan.

Francis C. Affronti, of Affronti & Affronti, LLP, of Rochester, represented the father. Seema Ali Rizzo, of Gallo & Iacovangelo, LLP, of Rochester, represented the mother. Denise R. Munson, of Walworth, served as Attorney for the Children.