There is a reality that affects many separated and divorced families and that undoubtedly causes great discomfort to at least one of the parents: the cases in which the children do not want to see one of their parents and refuse to comply with the visitation regime.
The causes may be many: the child’s own wishes, a possible manipulation by one of them (usually the custodian, although it is possible that there may be a parental alienation syndrome), the existence of a new partner of one of the parents or a new family nucleus in which the child does not feel comfortable, the creation of a stronger bond with the parent who has single-parent custody… This type of situation generates much suffering and need to be resolved for the good of all parties, especially the child. That is why it is important that parents negotiate and that the dialogue is open and fluid.
In this post we analyze this problem from the legal point of view and we are at your disposal to solve any doubt.
What is parental alienation syndrome?
At the most negative end of the possible causes of this refusal of the child to comply with the visitation regime we find the concept of ‘parental alienation syndrome’.
Jurisprudence speaks of it, although it is a controversial term for psychologists.
For example, the Supreme Court has ruled on the matter, in its judgment 519/2017, of September 22.
In it, it granted joint custody in a case in which the minor rejected the father figure due to an evident case of psychological manipulation, exercised by the mother.
More recently, the Supreme Court, in a judgment of April 11, 2018, denied the reason to a mother who appealed a judgment in which it was declared proven that her minor daughter was “severely influenced by the attitude of the progenitor, who questions and criticizes the father figure in an absolute way”.
The appealed sentence went further, stating that this situation “affects her psycho-evolutionary development and may have serious consequences in her later life”. He adds that “the course over time of the custody regime in favor of the mother has revealed (apart from the period of repeated obstinacy in obstructing the visitation regime established in favor of the fatherIn this sense, the five convictions in misdemeanor trials referred to in an undisputed manner by the appealed judgment), the creation of highly negative cohabitational factors for the full psychological and affective formation of the minor that, as substantial supervening circumstances, determine that it is in accordance with a concrete and reasonable consideration of the best interests of the minor (…) the change of custody regime adopted in the appealed judgment, especially when it is done not abruptly but by establishing a long period of adaptation converging with the duration of the school year”.) the change of custody regime adopted in the appealed resolution, especially when it is made not abruptly, but by establishing a long period of adaptation converging with the duration of the school year”. Perhaps one of the most interesting points of the sentence is when it states that the interest of the minor does not necessarily coincide with her will, which may be conditioned by one of the parents to the detriment of the other.
You may be interested in: Can the mother’s bad influence determine the loss of custody? A closer example can be seen in a judgment handed down by the Provincial Court of Tarragona (1216/2014), which states the following: “It is usually made up of one unwarranted campaign of denigration of the child towards the parent, or rejection of the parent due to the influence of the other parent combined with the child’s own contributionThis implies that it is a persistent and not a punctual or occasional action, unjustified and promoted, in whole or in part, by the other parent”.
It is difficult to undo the damage caused by this type of attitude: we are talking about a progressive process of alienation that requires psychological treatment which, in the best of cases, occurs when the evil is already done.
Normally the child will be convinced that his or her antipathy or even hatred towards the other parent is more than justified, and it is not easy to turn that thought around.
The damage caused to the child is extremely high, as well as the suffering and helplessness of the affected parent.
How to enforce compliance with the view regime
The consequences of a breach of the visitation regime by one of the parents (but not the child) are civil.
It is common to file an enforcement action to prevent time running out and the distance between parent and child from increasing. However, it must be borne in mind that the older the child is, the more his or her own will will will be taken into account and the more difficult it will be to force him or her to comply with the visitation regime.
The situation becomes particularly complicated from the age of 12 onwards.
In any case, the child’s willingness (or lack thereof) to comply with the visitation regime is not a ground for opposition to enforcement . The Public Prosecutor’s Office will analyze the child and give its opinion to the judge, studying whether there is any cause that justifies the non-compliance with the visitation regime.
It is not enough, in these cases, the existence of “normal” friction or fights between parent and child to justify the non-compliance, for example. In case of continued non-compliance, the parent may be fined. In any case, as we have seen in the judgment of the Supreme Court of 2018, it is possible that the custody regime is modified precisely alleging how the figure of the custodial parent may harm the child itself.
For this purpose, a lawsuit for modification of measures can be filed.
In conclusion, our advice is always to opt for dialogue and try by all means to get the custodial parent to cooperate, something that, unfortunately, is often complicated.
Experience tells us that normally when the child does not want to visit one of the parents it is due to manipulation by the other parent, except, of course, in cases where the parent engages in behavior that can (and should) be reported as being harmful to the child (for example, violence or substance addictions).
In these cases, the custodial parent will be able to claim the suspension or suppression of the visitation regime. Put yourself in our hands: consult us about your case.
