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# 4 - Recalcitrant teenager refusing to participate in Mom and Dad's parenting plan

LDG Monograph # 4                                             March, 2005 -- ver. 1.2

"Hell no, I won't go!"
THE RECALCITRANT TEENAGER REFUSING TO
PARTICIPANT IN MOM AND DAD'S PARENTING PLAN

© Lawrence D. Gorin, Attorney at Law, Portland, Oregon

    The allocation of parenting time as set forth in a Parenting Plan is directed to the parents, not to the child. There is nothing in Oregon law that even suggests that a child is somehow under any legal obligation to comply with the parenting time provisions of Mom and Dad’s divorce judgment.

    All too often it seems to be forgotten that the child is not a party to the parents’ divorce. An order that provides parenting time to a noncustodial parent is not an order that imposes any compliance requirement on the child.

    Parents, attorneys and judges, when confronted with the problem of the recalcitrant, defiant and perhaps rebellious teenage offspring who is adamantly refusing to visit and spend time with a parent “as ordered by the court” often, and understandably, experience a high degree of frustration.

    Nonetheless, there is only so much that the law can do. What is a frustrated judge to do after the “judicial lecture” (“Young lady, we are all required to follow the orders of the court.......”) and the judicial threat of dire consequences (“I’m just putting you on notice: if you do not do as I say, there will a heavy price that you will pay.......”)?

    So now what? Do we find the kid in contempt and lock her up? Doing so would be a punishment, not a remedial sanction (unless, I suppose, the sanction is confinement until she agrees to visit with the other parent). But even then, the question is the lawfulness of the underlying command that was ostensibly directed to the child. Do we find a person in contempt for failing to comply with an unlawful order? (Even in the military they don’t do that.)

    Besides, what do we then do with the teenager who responds by saying: “If the choice is going to jail or going to visit [other parent], I’d just as soon go to jail.”? Yes, she may be an insolent, obnoxious, annoying, rebellious and totally defiant teenage child. But that is not a crime, nor is it a situation that would invoke the exercise of juvenile court jurisdiction. (We long ago got rid of the status offense of incorrigibility, didn’t we?)

    Where there is a failure to comply with the terms and provisions of a parenting plan, enforcement, including sanctions, is readily available. ORS 107.434 was enacted by the legislature in 1997 to deal with this very problem. Indeed, one of the intended purposes of this legislation was to have this remedy utilized rather than resorting to contempt proceedings. But ORS 107.434 is a remedy directed to the recalcitrant parent, not the recalcitrant child. And it only comes into play when the parent has violated the parenting plan, not when the child has done so.

    It should also be understood that the contempt remedy provided in ORS chapter 33 may have limited application to parenting plan violations.  Typically, parenting plan violations involve conduct that has already occurred, e.g., custodial parent’s refusal to permit the other parent access to the child for court-ordered parenting time. As such, the contumacious conduct involves a past act, already completed, for which belated compliance provides no cure. This situation generally does not lend itself to the imposition of a contempt sanction that is “remedial,” i.e., a sanction imposed to terminate a continuing contempt of court. ORS 33.015(4). And if not “remedial,” it would most likely be classified as “punitive” and, as such may not be imposed in a contempt proceeding initiated by a private litigant. Miller and Miller, 204 Or App 82, 129 P3d 211 (2006) (confinement for 10-day definite period of time not available as a remedial sanction in contempt proceeding by wife against husband for failing to comply with obligations under dissolution judgment). Nor may private litigants initiate contempt proceedings that seek the imposition of punitive sanctions. Dahlem and Dahlem, 117 Or App 343, 844 P2d 208 (1992) (trial court had no authority to hear contempt proceeding filed by former husband seeking punitive sanctions on former wife for failing to comply with visitation provisions of dissolution judgment).

    Contempt proceedings may also be an ineffective tool for yet another reason.  By definition, ORS 33.015(2), conduct is contumacious only if done “willfully.” When it is the bratty, obnoxious, defiant teenage son/daughter who is refusing to get on the airplane (or get in the car) to go visit the other parent, with the custodial parent not in any way interfering with obstructing the “rights” of the other parent, there may be a problem in showing that the custodial parent is willfully disobeying the court’s order.

    When it is the teenage child who is defiantly failing to cooperate, to what extent do we hold the custodial parent responsible for the teenage child’s adamant refusal to visit with the other parent?  Most likely, this would not support an allegation against the custodial parent for "wrongful deprivation of parenting time." (Again, we are speaking here about teenage children, not the little tots.)

    Lastly, one creative idea suggested by some lawyers is to join the recalcitrant minor child as a party to Mom and Dad’s divorce proceeding for the purpose of having the judge then directly order the child to “visit with the  other parent” or face contempt sanctions for not doing so. However, Oregon law makes no provision for this to  be done, particularly if the purpose for doing is solely to compel the child to visit with a parent or be incarcerated (or adjudged to be a delinquent) for refusing to do so. Indeed, such action on the part of judge may very well be deemed as an abuse of judicial discretion and power. 

    In sum, enforcement of parent plans and remedies for parenting time violations are best dealt with through proceedings brought under ORS 107.434 rather than through contempt proceedings under ORS chapter 33.  But even then, there is still a problem and a lack of both parental and judicial remedy for dealing with the recalcitrant teenage child who, by word or by conduct or by both, says “Hell no, I won’t go!!

                                                 ###

LAWRENCE D. GORIN
Attorney at Law
521 S.W. Clay St., Suite 205
Portland, Oregon  97201
Phone:  503-224-8884
Fax:    503-226-1321
E-mail:  LDGorin@pcez.com
http://ldgorin.justia.net/index.com