Generally speaking, a child would never file a petition in a custody or visitation case. On a technical level, the child is not a formal party to the custody or visitation determination. At the same time, the child can be assigned an attorney to represent him or her, especially in family court matters. It is possible that the child may be able to contact their attorney and tell them that something has happened where custody should be modified. However, that circumstance is extremely rare. Usually, if there is a basis for a change of custody or visitation, it would come from one parent or the other filing a petition on behalf of their child.
As far as a child’s preference in custody being considered by the court, the older the child gets, the more likely that their preferences are counted. In fact, once a child reaches high school age, what they say usually goes. Very rarely will a judge go against the stated clear preferences of a child who is in high school, if they want to switch to the other parent’s house or substantially decrease visitation.
If Abuse or Neglect Is Established, Does That Immediately Change A Child’s Custody Arrangement?
Abuse and neglect cases really depend on the extent of the abuse or neglect and how easily it can be proven to a judge without conducting a full trial. Usually, Child Welfare would be alerted if there is an abuse or neglect allegation, and they would be the ones filing the petition and asking for custody to be changed. If it is one of the parties filing, the abuse or neglect would have to be clear to a judge in order for them to switch the custody of a child without conducting any kind of hearing. That can happen – but it is extremely rare.
Usually, there is going to be gathering of evidence required before a determination is made, which may include medical examinations or counseling for the child. I tend to feel more comfortable getting an intermediary involved in those cases because an expert is usually better able to analyze the situation so as to determine whether the child has actually been abused or neglected.
When Would A Petition For Enforcement Of A Visitation Order Be Applied?
In order for a visitation order to be enforced, you would have to have the other party served with an enforcement petition. A court date would have to be set and then a judge generally would need to conduct some type of hearing or trial, especially if the petitioner is looking for some kind of sanction. Common sanctions would be imposed makeup time for any missed visits, a possible award of counsel fees, and a possible monetary sanction.
Theoretically, the court could even order some type of probation or other services to be imposed on a violator of a visitation order. The judge could even jail a violator, technically. Both are extremely rare however. If a judge feels that a custodial parent is too entrenched in a campaign of disallowing visits, it would be easier for the judge to just switch custody – rather than throwing the custodial parent in jail.
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