One particularly challenging aspect of life after a child custody battle involves a failure to comply with a schedule of physical custody. These situations typically fall into two categories – (1) where the parent refuses to send a child as scheduled, and (2) where a child refuses to go with a parent as scheduled.
Whether parents share joint physical custody or one parent has sole custody and the other parent visitation rights, both parents have a right to custody as set forth in the Parenting Plan ordered by the court. These Parenting Plans are not suggestions; rather, they are legal obligations. Denying a parent custody when that parent has the legal right to exercise custody can constitute custodial interference, which is a crime. Also, denying custody as set forth in the Parenting Plan is prima facie evidence of contempt. Every Parenting Plan sets out not only a schedule where each parent has physical custody of the child but also the method of exchanging custody. For parents that generally get along, custody exchanges occur at school or at one or the other parent’s residence. For parents that do not do well in each other’s company, exchanges could be arranged at the court’s Exchange Center or a local police department.
Sometimes a custody exchange may not occur because of a child having an illness or a snowstorm or some similar last-minute emergency. In these situations, parents usually understand and work out a makeup time in the schedule. We are addressing in this post refusals that are not happenstance but intentional.
When a parent refuses custody at a police station or the court’s Exchange Center by simply not showing up as scheduled, and the parent responsible for bringing the child will not answer the phone, an email, or a text, the parent awaiting custody has a choice: (1) ask the police to locate the parent and arrange the custody transfer or (2) accept that the exchange will not occur. A parent should exercise good judgment in these situations because escalating an exchange to involve the police generally makes the child feel uncomfortable or frightened or confused. If a parent feels that the police can handle the situation in a way the child will not resent or fear, utilizing the police in that situation likely would be appropriate. If not, the parent denied custody would still want to complete a police report, particularly when exchanges occur at either the police station or an exchange center so that a record will be made for future use.
While acceptance of a single refusal may be the best way to handle the refusal at the moment, it is not the right approach in the long run, as it will only encourage the refusing parent to continue to deny custody. Our custody laws frown upon a parent denying custody, and after one or two documented refusals, the parent has two options for relief: (1) file a Motion for Family Access or (2) file a Motion for Contempt.
A Motion for Family Access has certain advantages over a contempt motion. First, a parent can file it without a lawyer. Second, the courts have a dedicated docket for motions for family access, so you will get heard faster. Third, a court has more options for relief when dealing with custody refusal, including ordering not only compensatory makeup time but also counseling for the parent, child, or family as a whole.
When would you want to use a contempt motion? Generally, when you have a situation where you feel that the parent will ignore the court repeatedly or that a change in custody might be necessary, you want to pursue a contempt motion. Repeat refusals themselves can be the basis for modifying custody.
As you can see, parents denied custody have several remedies. The keys to remember: (1) document every custody refusal; (2) do not escalate in a way that would not be in the child’s best interest; and (3) do not wait too long before you seek court intervention.
What happens when the child refuses to go with the other parent as scheduled?
It can be gut-wrenching after a custody battle to hear your child say, “I don’t want to see you anymore.” It could be one time; it could be months. It could be from a six-year-old or a sixteen-year-old. What do you do in these situations?
First, the child should not “run the train,” as that is the job of the parent. If the child suddenly refuses to go to a custody exchange, it is a signal. If the other parent is trying to make the exchange happen but still having difficulty, the parents together should make every effort to complete a scheduled exchange, particularly if the child is young. At the same time, if the problem persists, the parents together should seek counseling to help address the issue before it becomes much worse.
Second, if the parent with whom the child wants to stay immediately backs up the child, it is now a collective signal of what could be parental alienation – the deliberate attempt over time by one parent to discourage a child from wanting to be with the other parent. Parental alienation can be emotionally devastating; it is best to recognize it early and deal with it sooner rather than later. If the other parent seems to encourage a refusal of scheduled custody by supporting the refusing child, delay will only make matters worse and embolden the alienating parent. At this point, the parent denied custody should contact a lawyer and use every means to get custody back on schedule and utilize therapy (individual or family) if necessary.
Third, if the alienating parent does not give, the other parent will have to resort to the legal options we discussed earlier in this post – a Motion for Family Access or a Motion for Contempt. Depending upon the cause of the alienation, it might be beneficial to have the involvement of a guardian ad litem, an independent lawyer representing the interests of the child who could help the parents and the court try to see the underlying reasons for the child’s refusal.
Parents should know that just because a child refuses to go as scheduled for custody, the child does not automatically win. Parents are to follow the schedule and should encourage visits unless it would be apparent doing so would put the child in physical or emotional danger. If the child is young, assisting the child into the car should not be difficult. But the older the child, the harder it will be to physically assist, and no parent should resort to physical force.
Repeated refusal by a child is an indication of a serious problem – it could be an issue unique to the child that has nothing to do with the parents, it could be a signal of deeper psychological problems, or it could be the result of parental alienation. At this point, only a therapist can help unpack the problems and work to restore parent-child relationships.
The best legal strategy will be to try and get the child and the family into counseling and to restore custody as soon as possible. If the situation involves more complex issues, it may require more than just contempt actions but changes to custody. Each family is different, but the one constant is that acquiescence to the refusal will only make repairing the relationship more difficult, so delay is never a good option.
Should you need the assistance of an experienced divorce and child custody attorney or have questions about your situation, know that we are here to help and ready to discuss those questions with you.