Is visitation up to the child?

Often I am asked “Is visitation up the child?” This question often comes up when the custodial parent states or the Non-custodial parent is told, “But the child doesn’t want to go on visitation.”

The short answer is:  NO.  Call me to discuss your particular situation because there are substantial nuances to every family problem.

The most recent case in which this was discussed was Morgan v. Morgan, a 2014 case.  The primary consideration in setting visitation rights is the best interest of the child. Not what the child wants.  What follows is the “Black Letter” law from the Alabama Courts.

What follows is what the Court wrote-

This court has held that “‘[t]he natural and proper relationship of a parent and child should be nurtured, encouraged and protected by the court after the breakdown of a marriage. No unreasonable impediment should be raised…. “‘… The responsibility for the cultivation of that relationship should rightfully be upon the father, and the mother, not upon the child. To so place it is to probably destroy it, not protect it.’ “Moore v. Moore, 57 Ala.App. 735, 331 So.2d 742, 744 (Ala. Civ. App. 1976); see also Parker v. Parker, 269 Ala. 299, 303, 112 So.2d 467, 471 (1959) (reversing a judgment placing visitation at the discretion of the child and stating that ‘a decision as to what is best for the child’ should be made by the trial court rather than the child).” H.H.J. v. K.T.J., 114 So.3d 36, 44 (Ala. Civ. App. 2012).

In Parker v. Parker, 269 Ala. 299, 303, 112 So.2d 467, 471 (1959), our supreme court reversed the trial court’s judgment when it had failed in its duty to determine the best interest of the child. “It seems apparent that the change in the decree is grounded essentially on the desires of the child, a boy eleven years old. Moreover, the decree, in giving the child the sole right to determine, for at least half of each month, which parent should have his custody is geared to his variable desires in the future. There seems to be little need to catalogue the reasons why such a provision is inappropriate. It is sufficient to say that it places on this young child the exclusive responsibility of determining, from time to time, which parent should have custody. Thus, a decision as to what is best for the child is made by the child himself and not by the court.” Parker v. Parker, 269 Ala. at 303, 112 So.2d at 471.

Also instructive to this court are our decisions routinely reversing judgments when the control of visitation has been vested entirely in one person or one couple. See, e.g., Bearden v. Murphy, 120 So.3d 1096, 1098 (Ala. Civ. App. 2013) (“[L]eaving visitation to the sole discretion of the custodial parent … require[s] reversal.”); and Bryant v. Bryant, 739 So.2d at 56-57 (reversing a visitation provision that allowed the mother to determine the father’s visitation).

Although we are not unsympathetic to the youngest son’s feelings, we hold that the trial court erred in vesting total discretion regarding a noncustodial parent’s visitation in one person, and, in this case, that person is a child who cannot be expected to comprehend the legal, social, financial, or emotional implications of maintaining or of severing his relationship with his father. See Moore v. Moore, 57 Ala.App. 735, 737, 331 So.2d 742, 744 (Civ. 1976) (reversing an award allowing a father visitation at the discretion of the children on the basis that the award was “manifestly unjust” under the facts). Therefore, we reverse the trial court’s judgment insofar as it relates to visitation, and we remand the case with instructions for the trial court to enter a visitation order that fashions a visitation schedule that facilitates a relationship between the husband and the youngest son and that serves the best interests of the youngest son. See DuBois v. DuBois, 714 So.2d 308, 309 (Ala. Civ. App. 1998) (“The primary consideration in setting visitation rights is the best interest of the child.”).

Morgan v. Morgan, 2120101, 2120390