LEGAL RESOURCES
What If My Teenager Refuses to Go With the Other Parent?
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When a Teenager Refuses to Go
One of the most difficult enforcement cases arises when an older child refuses to leave with the possessory parent. Many parents assume that once a child reaches a certain age, the child may simply decide whether to comply with the court's possession order. That is not the law in Texas.
A possession order is directed to the parents, not the child. Until the order is modified by the court or expires by its own terms, both parents remain obligated to comply with it. A child's preference, standing alone, does not excuse a parent's failure to surrender the child for court-ordered possession. In addition, Courts view parenting time with the other parent in the same way that school attendance is viewed in Texas: it is mandatory, not optional.
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At the same time, courts recognize the practical reality that a seventeen-year-old cannot be handled in the same manner as a young child. If an older teenager physically refuses to leave despite a parent's good-faith efforts to comply with the court's order, the issue becomes whether the parent willfully violated the order or was genuinely unable to perform it.
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Texas courts have recognized that impossibility of performance may be a defense to contempt when a parent demonstrates that compliance was not within the parent's ability. In Ex parte Rosser, for example, the Fourteenth Court of Appeals granted habeas relief after a father was held in contempt when his seventeen-year-old daughter refused to visit her mother. The court concluded that contempt requires proof of a willful violation and that the father could not be jailed for failing to accomplish something beyond his ability when the evidence showed he encouraged the child to comply rather than obstructing visitation.
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The decision should not be understood to mean that a parent may simply tell the court, "My teenager refused to go." A parent seeking to rely upon impossibility must generally show that he or she made genuine, affirmative efforts to comply with the order. Evidence that the parent encouraged the child to attend visitation, prepared the child for the exchange, appeared at the designated exchange location, and did not interfere with the other parent's possession is often far more persuasive than a bare assertion that the child refused.
Passive Contempt
Parents should also be aware that a court may distinguish between a parent who is genuinely unable to comply and one who merely permits the child to dictate whether the order will be followed.
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A parent who says, "I told him he should go, but I wasn't going to make him," may face closer scrutiny than a parent who actively attempted to comply with the order. Courts expect parents to exercise their parental authority and make reasonable efforts to ensure compliance with court orders. A parent cannot avoid responsibility by remaining passive while silently allowing a child to defeat the court's order.
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On the other hand, Texas courts generally recognize that there are limits to parental control, particularly when dealing with an older teenager who is physically capable of resisting. The law does not ordinarily require a parent to physically assault, injure, or endanger a nearly adult child in an attempt to force compliance. Instead, the court evaluates the parent's conduct as a whole to determine whether the failure to comply resulted from willful disobedience or from circumstances that genuinely made compliance impossible.
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Each case is highly fact-specific. The parent's words, actions, prior conduct, and efforts to facilitate the visitation often become critical evidence in determining whether contempt is appropriate.
Case Law on Enforcement
One of the leading Texas case is Ex parte Rosser, 899 S.W.2d 382 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding). In Rosser, the father had possession of his seventeen-year-old daughter under a temporary order. The mother was awarded summer visitation, but the daughter adamantly refused to accompany her. The evidence showed that the father repeatedly encouraged his daughter to comply with the court's order, attempted to persuade her to go, and even disciplined her when she refused. Nevertheless, the trial court found the father in contempt and ordered him jailed. The Houston Fourteenth Court of Appeals granted habeas relief, holding that involuntary inability to comply is a complete defense to contempt because contempt requires a willful violation of the court's order. Since the father established that he did not prevent the visitation and could not physically force a seventeen-year-old to accompany her mother, the contempt order could not stand.
Rosser is frequently misunderstood. The case does not hold that parents are excused whenever a teenager says, "I'm not going." Instead, it recognizes that a parent who has made genuine, affirmative efforts to comply with the court's order cannot be held in contempt for failing to accomplish something that has become genuinely impossible.
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The Amarillo Court of Appeals reached a different result in Ex parte Morgan, 886 S.W.2d 829 (Tex. App.—Amarillo 1994, orig. proceeding). There, the trial court found that the mother did little more than allow the children to decide whether they wished to accompany their father for visitation. The order recited that she "did nothing to insist" that the children comply and effectively left the decision entirely to them. Although the appellate court ultimately granted habeas relief because the contempt order itself was legally defective, it recognized that a parent who encourages children to resist visitation or otherwise frustrates compliance with a possession order may be subject to contempt.
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These issues can be quite difficult to handle on your own due to the legal complexity and emotionally-charged nature of the proceedings. It’s best to consult with an experienced family law attorney in your area.