Divorce is often difficult for everyone involved, but especially for children. Adapting to a new schedule and routine can be stressful, and there might come a time when your child refuses to cooperate with your established parenting plan. While it's important that you continue following the parenting plan and visitation schedule to the best of your ability, there are also steps that you can take to protect yourself in the event your child refuses to visit the other parent.
When you're getting divorced and have children, or if you're involved in a paternity case, the court will require you to submit a proposed order (sometimes referred to as a parenting plan) outlining a custody arrangement and a visitation schedule. If you've worked out a parenting agreement, a judge will usually approve your plan as long as it appears to be in your child's best interests. Without an agreement, the judge will have to decide what's best for the child, after reviewing each parent's proposed order and the evidence they present at a court hearing on the issue.
The custody arrangement will usually designate the primary custodial parent (sometimes called the residential parent). The child will live with the primary custodial parent all or most of the time but will usually spend some amount of time with the noncustodial parent. The visitation or parenting time schedule will detail when and where each parent will have time with the child during the school year, holidays, and school breaks. Until a judge issues a new order changing the custody arrangement, you're expected to continue following this parenting time schedule, even if your child refuses to visit the noncustodial parent.
If your child doesn't want to visit the other parent, it's important that you do everything you can to get your child to cooperate with the scheduled parenting time. If you allow your child to miss parenting time, without making a serious effort to work the issue out, a judge may very well conclude that you're interfering with the other parent's visitation. This could lead to a variety of consequences, such as:
Fortunately, there are a number of steps you can try to resolve the problem.
As soon as you're having problems getting your child to the scheduled parenting time, it's crucial to give the other parent proper notice about what's going on. Typically, your parenting agreement will say which methods of communication you and the other parent should use to discuss parenting issues. If it does, be sure to use this method to notify the other parent about the visitation problem. Otherwise, use any method (such as a text message or email) that will allow you to prove when you communicated the issue to the other parent. Be sure to explain what you've already done to try to get your child to visit.
It's also important to communicate with your child. Along with explaining the importance of parenting time and obeying court orders, see if you can find out whether there's a reason your child doesn't want to spend time with the other parent. Depending on what your kid has to say, the answers might give you an opportunity to talk through and resolve the issue with the child and the other parent.
If the answers to your questions lead you to believe your child is being abused during visitation, immediately write down everything your child says, along with anything you've seen that back up those statements (like sudden changes in behavior or school performance after earlier visits). Whenever there are credible claims of abuse, go to court as soon as possible and request a temporary protective order that will require the other parent to stay away from your child.
Because that protective order is only temporary, you'll also need to ask the family court for a modification of the current custody and visitation orders (more on that below). It's important to act quickly. If at all possible, you should speak with an experienced family law attorney to get help with your modification request. You can also learn more about domestic violence and child custody, including other resources for assistance and advice.
Children don't always give clear answers about why they're refusing to visit a parent—or their explanations don't necessarily lead to easy resolution. You might try family counseling or custody mediation to get help coming up with a solution that would work for everyone involved. .
Some parents also turn to "reunification therapy" when kids are resisting visitation—although it's usually noncustodial parents who ask judges to order children to participate. Reunification therapy typically involves counseling sessions between the child and one or both parents. Sometimes, it also means cutting off all contact with the custodial parent for the duration of the program, or even sending the child away to a "camp" with the noncustodial parent. The goal is to strengthen the child's relationship with an estranged parent and ultimately repair their relationship so that parenting time can proceed successfully.
Reunification therapy has become controversial, particularly when it requires children to spend time alone with a parent they've accused of abuse. But with proper protections, it might be helpful in some situations.
If you're not able to resolve the issue of your child's visitation refusal, either parent may seek to change (modify) the current custody arrangement or parenting time schedule. For instance, if your teenager no longer wants to be away from friends and school activities during long visits with a noncustodial parent who lives far away, you might want to change the parenting time schedule to allow for less visitation during the school year.
If you and the other parent are able to agree on a new schedule, you can submit the agreement to the judge for approval. Without an agreement, however, you'll need to file a motion (formal request) with the court to modify the existing parenting schedule. Many states will require you to show that there's been a substantial change in circumstances since the previous agreement or order, but some states won't require this when you're requesting only a change in the visitation schedule rather than a change in custody (that is, where the child primarily lives). The fact that an adolescent has refused to continue cooperating with the parenting schedule—or that the custodial parent has stopped trying to get the child to obey—might qualify as a change of circumstances.
Whether or not you must prove there's been a change in circumstances, you'll need to convince a judge that the requested modification would be in the child's best interests. When making that decision, the judge will typically consider the same best-interest factors that go into all custody decisions.
Children who are considered legal adults (age 18 in most states) may always refuse to spend time with a parent. Technically, any child who is not yet a legal adult isn't allowed to refuse visitation. In practice, however, the situation is a bit murkier than that.
As any parent knows, it can be difficult to force teenagers to do anything they absolutely don't want to do—including visiting a noncustodial parent. In many states, judges may take some children's wishes into account when considering changes in visitation or custody. The rules on considering children's custody preferences vary from state to state, but judges may usually hear from children who are mature enough to express a thoughtful, reasonable opinion as to why they'd prefer to live with one parent or why they don't want to visit with the other parent. Typically, the child's wishes will be one factor among many that the judge will consider—although the preferences of older children might carry greater weight.
If you're the noncustodial parent and your child refuses to return to the custodial parent after visiting you, you should follow many of the same steps outlined above. It's important that you continue to do everything you can to get the child to go home when the parenting schedule calls for it. Notify the custodial parent of any issues and make sure you have a record of your communications (preferably in writing). You should also speak with your child to determine what's behind the refusal and try to help resolve any problems.
If the child continues to refuse to go back to the custodial parent, you may be able to request a modification that would make you the custodial parent.
Unless the custodial parent agrees with your proposed change, you'll need to file a modification motion in the court. As discussed above, you typically must show that there's been a change in circumstances since the time of the previous custody order, and that the requested modification would be in the child's best interests. Here again, the judge might take into account your child's preference when determining whether or not to grant the change in custody.
If you're seeking a custody modification, you'll probably also want to request a change in child support, so that the other parent will begin paying you support once you become the custodial parent.
There are many downsides to legal custody battles, including the expense and emotional toll on everyone involved—especially the kids. That's why it's always best to try to work out an agreement with the other parent—either on your own or with the help of a mediator—when your child is refusing to cooperate with the parenting schedule.
But if you can't find a solution you can all live with, you'll need to navigate the legal system to enforce or change the current parenting schedule. The courts in some states provide simplified procedures for enforcing custody orders. Check with your local court clerk's office or online self-help resources to see what might be available in your state. Otherwise, you should strongly consider speaking with a family lawyer who can help protect your legal rights and your child's welfare.