Every parent knows that children have minds of their own—especially teenagers. And the back-and-forth of shared custody and visitation schedules (also known as parenting time) can be hard on children of divorce. Sometimes, they respond by refusing to go along with the parenting plan. Other times, their lack of cooperation stems from a serious problem with a noncustodial parent. Whatever the reasons, you need to understand your legal obligations as a parent, what can happen if you don't meet those obligations, and strategies for dealing with the problem.
Whether you've divorced or legally separated, you need a court order dealing with the legal and physical custody of any children you have with your ex. Parents can work out their own agreed parenting plan, with a judge's approval. But when they can't agree, a judge will decide on a custody and visitation order based on the child's best interests.
Your custody order will designate which parent the children will live with all or most of the time (usually called the primary custodial or residential parent). Especially when the parents share physical custody—which is increasingly common—the order will typically include a parenting plan with a schedule for the days, nights, and holidays when the children will spend time with the noncustodial (or nonresidential) parent.
If you want to make any changes to the parenting plan in your custody order, you must ask a judge for a modification or for approval of any changes that you and the other parent have agreed on (more on that below). Without a modification, you could land in hot water if you aren't following the visitation schedule—even when it's your child who's refusing to go along with the plan.
In the past, custody orders often simply provided that noncustodial parents should have "reasonable" visitation, without specifying when and for how long. And custodial parents were simply required to make their children reasonably available for that visitation. Now, it's not only typical for parenting plans to include detailed schedules, but they also often spell out exactly how both parents are supposed to arrange dropping off and picking up their kids, as well as how they should communicate with each other when something unexpected comes up. When a child is sick or otherwise unable to make a visit, the primary custodial parent must notify the other parent as soon as possible. The noncustodial parent has a similar responsibility when the child isn't able to return on time.
If you're in doubt about exactly what you need to do to get your child to see the other parent, check the details in your custody order.
If you don't make your child available for visitation or time-sharing, the other parent could take various legal steps, including initiating contempt proceedings or requesting a change in custody.
When parents have ongoing problems getting court-ordered visitation or parenting time with a child, they may ask a judge to enforce their custody orders through contempt proceedings—usually by filing a motion or application for an Order to Show Cause.
There's no hard-and-fast rule on how many violations of a court order are enough to warrant a contempt citation, but it usually needs to be repeated or continuous. Also, in addition to finding that you disobeyed a court order, the judge must find that you did so deliberately and willfully. So it's up to you to prove that you seriously tried but failed to make the visitation happen.
Generally, judges aren't very sympathetic to custodial parents' arguments that their children don't want to visit the other parent. This is particularly true when the children are young. But even with adolescents, parents must convince a judge that they did everything they could to get their children to see the other parent. For example:
Usually, a parent who hasn't been able to visit with a child will seek to enforce the custody order through civil contempt (which is meant to force the other parent to obey the order) rather than criminal contempt (which is aimed at punishing a parent for disobeying a court order). So after finding a parent in civil contempt, a judge will typically start out by ordering that parent to make the visitation happen. Parents who still don't comply could then face fines or even jail time.
Your child's other parent might also file a request to modify your existing custody order based on claims that you aren't fulfilling your responsibility to facilitate court-ordered visitation or parenting time. When requesting a custody modification, parents must show both that there has been a significant change of circumstances since the existing order was issue and that the proposed custody change would be the child's best interests.
When judges are deciding what custody arrangement is best for children, one of the factors they generally consider is the extent to which each parent is willing and able to foster the child's relationship and continuing contact with the other parent. That means a judge might take into account a custodial parent's failure to make a concerted effort to get the child to spend time with the other parent.
All states have laws making it a crime to interfere with a parent's custody. The details in these laws vary, and a few states (including New Jersey) specifically include interference with parenting time or visitation. However, as long as you tried your best to get your child to see the other parent, it's not likely that you would be charged with (or convicted of) one of these crimes based on your child's refusal to cooperate.
There are various strategies you should try when your child is refusing visitation or parenting time. The more efforts you make, the less likely it is that you'll face contempt charges or other negative consequences based on your child's refusal to spend time with the other parent.
Whenever your child is not cooperating with a scheduled visitation or switch in parenting time, immediately contact the other parent and explain what's going on. If your custody order or parenting plan has included methods of communication, use that method (which might include contacting the parent's attorney). Otherwise, it's best to text or email, so that you'll have a written record of exactly what happened, including all of your efforts to convince your child to obey.
In addition to explaining the importance of seeing the other parent and obeying court orders, make sure that you ask why your child doesn't want to do that. Has something changed in the other parent's household—such as a new partner or new baby—that's making visits uncomfortable? Is it that the scheduled times with the other parent are conflicting with school or other activities that are important to your teenager? The answers to these questions could help you and the other parent work out solutions.
If your child clams up and refuses to say what's going on, you might try counseling with a therapist who's skilled at working with youth and families.
If you suspect that the other parent is abusing your child, do everything you can to document the evidence. When your suspicion is based only on what your child has told you, get as many details as possible (while being careful not to coach your child into saying things that aren't true). Write everything down, and include anything you've observed that supports what your child says (such as behavior changes or medical problems following previous visits.)
Then bring your evidence to court and request a temporary protective order to keep the other parent away from your child. You'll also need to file a formal request for a custody modification. Otherwise, you could still be cited for contempt if you simply stop the visitation based on suspected abuse. Learn more about what you can do and how to get help when you're dealing with domestic violence and child custody.
Except in cases of suspected abuse, it might be helpful to enlist the other parent's help. See if your child would be willing to speak with you and your ex, either in person or on a video call. Here again, you could try family counseling with all three of you. Even if these conversations don't change your child's mind, they might help the other parent understand what you're dealing with—and be less likely to take legal action against you.
If nothing else works, you may try to change the existing parenting arrangements, either through an agreement or a modification proceeding in court. Start by seeing if the other parent would agree to a change that will deal with the source of your child's lack of cooperation. For instance, you could adjust the parenting schedule to accommodate an adolescent's changing needs and interests. If you're having trouble agreeing on your own, see if the other parent would participate in custody mediation. (Either way, you would have to get a judge to approve any agreement that you've reached.)
Without an agreement, you'll need to file a request to modify the custody order. If the judge agrees that you've met the threshold requirement for a modification (a significant change in circumstances), many states allow (or even require) the judge to consider the custody preference of a child who's mature enough to express a reasonable opinion on the issue.
In many cases, you'll be able to resolve the visitation problem by communicating with your child and working with the other parent. But if you need to request a custody modification, or the other parent is taking legal action to deal with the situation, you should speak with a child custody lawyer who can explain the complex legal issues involved and help protect both you and your child.