When a couple who have children obtain a divorce, the court will enter a Parenting Plan that sets out the residential schedule for the children as well as other responsibilities such as the decision-making authority for the parents on behalf of the children. A typical Parenting Plan permits the “non-primary” residential parent to have alternating weekend visitation with the children, often with some mid-week visits every week (such as after school through dinner on Wednesday).
Where parents divorce when the children are young, this type of a parenting plan can be workable and not present any challenges. However, as the children grow older, the children start developing stronger relationships with their peers, become involved in athletic and other extracurricular activities, and generally want to “hang out” with friends more than stay with their parents – whether those parents had been living together as a married couple or divorced years ago.
Conflicts may develop when a pre-teen or teenaged child refuses to speak with the non-residential parent on the phone, or if the child simply declines to spend time with that parent. Often, the non-residential parent will become upset and often accuse the other parent with being involved in the child’s refusal.
A parent can seek a contempt order against the other to compel another parent to comply with a parenting plan. The moving party must establish non-moving party’s bad faith by a preponderance of the evidence. If the court finds that a parent has, in bad faith, failed to comply with the parenting plan, the court shall find the parent in contempt of court.
A parent who refuses to perform the duties imposed by a parenting plan is per se acting in bad faith. If this occurs, the non-moving party must, to avoid a contempt order, establish a reasonable excuse that he or she does not have the present ability to comply with the court ordered residential schedule by a preponderance of the evidence.
Existing caselaw recognizes where compliance with a parenting plan may be difficult or impractical when a recalcitrant teenager refuses to spend time with one parent. If the parent with whom the child is living chooses not to force the issue and notifies the other parent of that decision, punishment by contempt would appear to be an inappropriate remedy. Counseling may offer a better solution under such circumstances.