What will happen if the court ruled in favor of a mother to have the custody of her child but the child refuses to go with her and she prefers to stay with the father?
This situation (and this question) comes up a lot. I will answer the question as it applies in my experience to the jurisdiction where I practice divorce and family law (Utah).
SHORT ANSWER: The general rule of thumb is that if the child is a teenager and has the guts and the will to defy the court’s custody orders, then that child is going to live with the parent with whom he or she wants to live because the court is essentially powerless to force the child to comply with the child custody order, i.e., the court finds it more trouble than it is worth to enforce a child custody order against a defiant teen.
LONGER ANSWER: Technically, the child has no choice in the matter, once the court has issued its child custody ruling and resulting orders. In other words, just because somebody doesn’t want to follow court orders doesn’t mean that he or she is free to disregard them or to act as a law unto himself or herself. This proves to be true of court orders pertaining to adults. Child custody orders, and the children affected by them, however, are in reality a different matter.
In the law we have two terms that help to describe the situation: de jure and de facto. De jure means that which is which applies as a matter of law. For example, as a matter of law, your child is ordered to spend most of his/her time in the custody of mother, with the father spending time the child on alternating weekends and a few odd holidays. De facto means that which is or that which applies as a matter of fact (in reality, and not as the court may artificially require). So while as a matter of law your child is required to live with mother, if in reality (as a matter of “fact”—this is where the “facto” in “de facto” comes from) the child refuses to live with mother and stays at the father’s house, that is the de facto child custody situation.
When A) the de jure and de facto situations conflict in a child custody situation, and B) the child is old enough, strong enough, and willful enough to continue to the court’s custody orders, the court often (not always, but usually) feels that they are practicably powerless to force children to live with a parent with whom they do not wish to live.
Normally, when an adult will not comply with the court’s order, One of the tools a court can use to enforce compliance is its contempt powers. Those powers include finding and jailing the noncompliant person. But with children, that power is, for all intents and purposes, nonexistent. Children usually have no money with which to pay a fine, and Utah does not allow courts to jail minors for mere contempt of court.
Some courts try to get creative and impose sanctions on a noncompliant child by essentially ordering them “grounded”, but again, if the child chooses not to comply, there is little the court can do or feels is wise to do to the child. I’ve seen a court try to get a child to comply by ordering her barred from participating in her beloved dance classes and driver education courses (so that she can’t get her driver license unless she lives with the court ordered custodial parent) as long as the child refused to live with the court-ordered custodial parent. In that case, however, the child outlasted the court, i.e., she kept living with the noncustodial parent and stopped attending dance and driver’s ed. classes. Then the court found itself in the awkward position of preventing the child from getting exercise and driving to and from her job and other worthwhile, even necessary activities, so the court relented (both in the best interest of the child and to save face). This is a lesson that most courts learn when they try to use the coercive powers of the court against children to enforce child custody orders.
Courts don’t want to dedicate their own resources and law enforcement resources to 1) literally dragging a child out of one parent’s home and literally stuffing the child into some other home; and 2) doing so repeatedly when the child refuses to stay put. It’s a waste of law enforcement resources and the fear is the child will eventually run away (and act out in other self-destructive and dangerous ways), if not allowed to live with the parent of his/her choosing.
And courts don’t want to punish a parent for the misconduct of a child. Some courts have tried to punish noncustodial parent by holding them responsible for their children’s noncompliance with the court orders, but that doesn’t work when the noncustodial parent truly isn’t at fault. Courts realize that a noncustodial parent cannot simply, for example, 1) push the child out the door, lock it behind the child, and wish the child well in subzero degree weather; or 2) manhandle the child into the custodial parent’s car, then be charged with child abuse. And punishing the noncustodial parent often only serves to lead the child to be more determined to defy court orders.
As you can imagine, a child’s “power” to choose where he/she lives usually does not arise until the child is old enough and strong enough and willful enough to exercise some degree of autonomy over which parent with whom he/she lives. That doesn’t usually happen until children reach approximately the age of 12 or 14, although some children may start younger. Children under that age are typically unable or too afraid to exert their own preferences and wills.
Utah Family Law, LC | divorceutah.com | 801-466-9277