In most New Jersey child custody cases, the non-custodial parent is granted a good amount of parenting time, with guidelines outlined in N.J.S.A. 9:2-4. As child custody lawyers, the only time we see a major deviation from these guidelines is when the judge finds it is not in the best interests of the children, most often due substance abuse, mental illness or a history of neglect or abuse.
Something else that could factor in is the child’s wishes. Although there is no bright line rule for the age at which a child gets a say, most New Jersey family law attorneys would agree it’s usually at around 10 - 14 years. However, it is not unheard of for children even younger to have a voice in parenting time arrangements. It is very case and Judge specific.
If your child is refusing parenting time with you or their co-parent, it’s important to speak with a family law attorney promptly. Custodial parents need to protect themselves from allegations of contempt or parental alienation. Non-custodial parents will not want periods of limited contact to drag on - for the sake of both your relationship and the strength of your parenting time case.
When Judges Allow Kids to Have a Say in Parenting Time
The standard for allocating parenting time is not necessarily what is most fair for both parents (though that is certainly taken into consideration). The standard is what is in the best interests of the child. If a child is reluctant to stick to the visitation schedule - whether because they do not like being away from their friends/extracurricular activities or because they have a rocky relationship with that parent – the other parent may turn to the Court for help.
One example of this made its way to the New Jersey Superior Court’s Appellate Division a few years ago. In that case, parties were married for 10 years and had five children, an 18-year-old, a 12-year-old and 9-year-old triplets. The wife was designated the primary residential parent. Their marital settlement agreement indicated they would each directly schedule time with their oldest. They agreed to alternate every four days with their three youngest. But scheduling parenting time with the 12-year-old proved tougher, so they let the court decide.
The judge met with the child one-on-one to hear her feelings. After that meeting, the judge suggested the same parenting time schedule for her as was in place for the triplets.
However within a year, the mother informed the father their daughter no longer wanted to participate in overnights with her dad. She wanted to stay full-time in her hometown, near her friends and her sporting events, and her mother felt she was old enough to make that call. They tried to work it out together for several months, but when they couldn’t reach an accord, the court was again asked to intervene.
Again, the judge met the child and concluded she was intelligent and mature and had clearly stated her preferences to end overnight visits. The judge declined to order anything beyond the informal arrangement that was in place, essentially giving the child the right to decide.
The father sought reconsideration, arguing courts should not allow a 12-year-old to dictate parenting time. The court disagreed and denied his motion. He appealed, alleging the court ignored relevant statutory parenting time factors by allowing a child to have the final say.
The appellate court chose to reverse, finding the trial court failed to weigh all of the parenting time factors. However, the fact that the lower court gave the child’s desires such weight shows that it’s not impossible.
Don’t Create Your Own Modifications
The important thing for parents to understand is that you are required to abide the parenting time arrangement that is in place. You cannot arbitrarily refuse to cooperate with it - even if your child doesn’t like it - without a judge’s approval.
Parents have a responsibility to make a child reasonably available for visits at the times set forth in the order. Lots of custody orders do not specify the exact details, but it’s presumed both parents are going to act reasonably and cooperate. If a child is sick or is likely to miss a scheduled visit for some reason, the parent responsible needs to make the other aware as soon as possible - and do their best to make-up that visit.
When kids are younger, it is even more so the parents’ responsibility to facilitate the time. This does not mean parents can arbitrarily decide to stop following parenting agreements when their kids become teens, but judges may be more understanding of a parent having trouble getting a teenager to cooperate versus a toddler.
If a child is refusing parenting time visits, custodial parents can be asked to show cause and prove they are trying to follow the agreement (the child just won’t cooperate) or face contempt charges. No matter what side you’re on in this kind of situation, it’s important to document everything you can as best you can and make an appointment with a family law attorney as soon as possible.
Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.