Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

Going To Trial Because Your Kids Don’t Like Visiting With Your “Ex” Usually Isn’t Worth It

What do you do when your two children, ages 12 and 14, are adamant about not visiting with their father during the periods specified in the divorce decree? The mom sent that question not long ago and it has been the focus of the two prior columns.


Mom shared few details about the kids’ relationship with their dad other than suggesting that the children much preferred living with her. She wanted to know if her kids’ preference would be given much weight by a judge.


As I wrote previously, children at these ages will be listened to at trial, but their concerns are not likely to be determinative, unless their objections are due to abuse by the father or some other failure by him as a parent. General dislike, even expressed strenuously, will not alone warrant a change in the schedule.


As such, I think taking this to court is the least palatable of the options facing this reader. Instead, as I related previously, mom, dad and the kids should work together, perhaps with the help of a mediator, to work out an alternative plan that everyone can accept and then present this to the court for its approval.


But, alas, what if this effort fails? There just may not be a way to satisfy both dad and the kids, with dad rightly insisting on retaining significant time with his children. And, with the children barricading themselves in their room each time dad comes calling, mom may have no other choice than to file a motion to modify with the family court.


This is likely to be an uphill battle, costly in money and spent emotions. If the case goes to trial, and most of these custody fights do because the “prize” is so dear, legal fees will be several thousand dollars. Expert witnesses… psychologists, psychiatrists, pediatricians…are often involved adding to the expense. Anxiety about the outcome, and acrimony between the parents and children increase the toll even further.   


For the person filing the motion, the burden of proof is clear: He/she must show there has been “substantial and continuing change in circumstances” since the last schedule was ordered and the change must be shown to be “in the best interests of the children”.


The judge will have to be provided substantial reasons for reducing one parent’s time with his/her children. Abusing them would certainly qualify as would a routine failure to perform parental functions such as preparing meals, assisting with schoolwork or to being available because of that parent’s work or social schedule. If the parent has moved much farther away from the other parent’s home so that the travel distance is much greater, this can also support a schedule change. So can refusing to let the children have their friends over.


The judge will often appoint a “Guardian Ad Litem” (GAL), an attorney to represent the children. The GAL is not obliged to support the outcome the kids want if the GAL determines that will not be in their best interest. He/she will interview the children, parents, teachers and others to assess the situation and to form his/her own recommendation. Since judges are often influenced significantly by the GAL’s assessment, the parent seeking the change would be wise know what the GAL believes before going to trial.


Parents push these cases propelled almost entirely by a desire to accommodate their children. Prospective litigants should know that kids often cave in when it comes time for them to actually testify before a judge. Many might prefer to live with one parent more than the other, but many fewer are willing to say so publicly knowing the pain it will inflict on the other parent.