Whether by agreement or court order, a visitation schedule alternating the physical timeshare between parents will exist at some point in a divorce. This so-called timeshare calendar is presumed to be in the “best interests” of the children involved. But what happens if a child refuses to cooperate with the schedule the grown-ups have deemed the “best”? Can or should Mom or Dad insist the schedule be followed? How are a child’s “danger signs” flagged in the world of child custody — as opposed to normal adjustment and “growing pains” to having two homes? What can you do to protect yourself and your child?

Get to the Bottom of the Reasons for Timeshare Resistance

Resistance to the schedule could be caused by any number of reasons. It is key to determine as accurately as possible the underlying (and unstated) reasons the child is struggling against the weekly schedule and wants to spend less time with one parent and more time with the other. In California, the stated policy for timeshare between custodial parents is “frequent” and “continuing,” so that children get the benefit of time spent with both of their parents.

Custody orders are court orders and must be followed by both parents. But these can be changed by the Court if a change is warranted. Therefore, it is critical to assess the resistance and determine the cause.

• Is a child overly identifying with the custodial parent and afraid of hurting that parent by spending time with the other parent?
• Has the child grown weary of a stricter, more disciplined household at the other parent’s home?
• Is the child being left alone in an inappropriate way for the child’s age?
• Is there a conflict between the parents that is being absorbed by the child such as at the custodial exchange?
• Is a stressed-out child clinging to the familiar (such as a nanny, a family pet, step-siblings or a stay-at-home parent)?

The physical structure of the “former family home” itself offers great appeal to children of all ages. It often does matter which parent remains in the house after the family separates. Getting to the crux of why the child is resistant will inform parents as to whether a change to the schedule needs to be made. Or whether skilled communication and slight adjustments can sooth the resistant child.

Consider the Age of the Child

A key point of the analysis is the age of the child. In theory, a younger child is easier to cajole into compliance with the timeshare calendar, once the reasons for refusal are known and addressed. Be aware that younger children struggle with more frequent illness and “sick days” or health issues which could be masquerading as timeshare resistance or could, in fact, be somatization (the experience of a health malady which is psychological in nature).

Older children, especially teens, are seen as forming their own identity, which may include a preference to spend more or less time (or fewer overnight stays) with a noncustodial parent — depending on for example the nexus between geographical proximity of Mom’s house/Dad’s house and availability of transportation to key events. Teens have busy schedules!

In California, 14 years old is the magic age to address the Court and express a preference. Older children, depending on their age, maturity and ability to reason are seen as having more autonomy and input on custodial preference, depending on the demands of their own peer circles and extracurricular activities. At some point, children between the ages of 16 – 18 can drive, rendering it impractical to require compliance with a timeshare that does not “work for” them.

Evaluate Safety Concerns

Certainly, if a noncustodial parent’s household is unsafe or unsupervised, or basic necessities are not being provided, immediate attention needs to be paid by the custodial parent. There are times where a child’s refusal to go is directly related to these paramount concerns. Circumstances which pose emotional or physical danger require a custodial parent to step in. Pay attention to the refusing child’s overall well being such as changes in diet, refusal to eat, diminishing performance at school, unwillingness to socialize with friends, changes to his or her demeanor, and nightmares and/or regression (i.e. bedwetting, babytalk). These red flags should be promptly addressed with teachers, pediatricians or a good child psychologist.

Strategies for Addressing the Situation

It can be stressful, both personally and legally, to deal with a non-compliant child. Do your best to be calmly evaluative. Keep a visitation log and document each instance when your child avoids a visit and the reasons why. Include detailed notes about the circumstances surrounding the refusal. Keep an eye on the child’s disposition in multiple environments and times of the day. Barring any safety concerns, communicate with the non-custodial parent as quickly as possible. You owe them the opportunity to speak with the child and collaborate to find solutions.

While you may want to protect your child’s stated feelings and expressed preferences at all costs, keep in mind that custodial orders are legal in nature and must be followed like all other court orders and that contempt of those orders does apply. When in doubt, it is best to contact an attorney or child counselor for advice.