Resist and Refuse: When The Child Won’t Follow the Custody Schedule

On April 24, 2024, Partner Meg Rosan presented to the D.C. Bar, Family Law Section, on the complex dynamics in “Resist and Refuse Cases”.

Meg’s panel discussed “resist and refuse dynamics“, which present in cases where a child is resisting or refusing time with one parent.

This can, of course, significantly complicate custody cases.

How Do ‘Resist and Refuse’ Dynamics Present?

Resist and refuse dynamics can present in many different ways.

From Meg’s perspective when she serves as the child’s counsel – either as “Best Interest Attorney” (MD) or “Guardian ad Litem” (DC) – there are several signs she looks for to help her recognize the dynamic is occurring:

Does the child show ambivalence towards both parents? Or is there black-and-white thinking, with one parent ‘good’ and the other parent ‘bad’?

Does the child volunteer negative stories about one parent, even when you were talking about a wholly different topic?

Does the child feel more comfortable speaking honestly about his/her parents in the custody of one or the other parent?

How does the child characterize each parent’s view of the other?

Does the child feel responsible for their other parent’s happiness, for example, does the child feel it is his or her responsibility to reject one parent in favor of the other?

How Can the Child’s Counsel Make These Assessments?

The child’s attorney must be trusted by key stakeholders, including the child, the parents, the parents’ attorneys, and any mental health professionals involved in the case, among others.

Building trust involves listening more than preaching. It is better accomplished while meeting with the child in neutral locations, such as school, or even a coffee shop depending on the age of the child. And it involves making sure the child understands you will make his/her voice heard, but being heard is not the same as being able to direct the outcome.

Unless the child is found to have ‘considered judgment’, (in which case the child’s attorney is advocating for the child’s stated preferences), it is the job of the child’s attorney to make recommendations that are in the best interest of the child, regardless of whether that may run contrary to the child’s stated preferences. Clarifying this for the child can lift a weight off their shoulders.

What Can Be Done?

Resolving these cases can be extraordinarily difficult, especially when the best resolution often involves support from multiple professionals, which is not affordable for every family.

One of the most important and least expensive approaches is to help a parent change their mindset from advocating a stated position, to advocating whatever position is determined to be in the best interest of their child. Ideally, there is at least one mental health professional with experience in these types of cases, who can work with the family on this piece, and educate them about the risks of refusing to shift that focus.

It can sometimes be most helpful for the favored parent to attend therapy with the child, and where appropriate, focus not so much on “making the child go” to the other parent, but instead shift the dynamic to determine what time with the other parent the favored parent can sincerely support, and how best the favored parent can communicate that support to the child.

What Can Be Done in Court?

The least preferred mechanism of resolving these cases is litigation. Judges have few tools to repair these dynamics, assuming you can even establish they exist in the family.

Some relief that may benefit the family includes minimizing contact with the non-custodial parent when it’s safe to do so, ordering the continued involvement of professionals who understand the dynamic and keep the parents focused on child-centered decision-making, and in more extreme cases, making detailed factual findings or ordering periods of time with no contact with a parent.

Bulman Dunie attorney, Meg Rosan, Esq., is regularly appointed by area Judges to represent children in contested custody cases, including cases with ‘Resist and Refuse’ Dynamics. She frequently mediates custody and other disputes for families in conflict in Maryland and Washington, D.C. Contact Meg at mrosan@bulmandunie.com or 301-656-1177.