Even after you have worked out your parenting plan, there are bound to be surprises. Ideally, your agreement will try to foresee most of the problems that could crop up in time-sharing and parental decision-making. It should also contain a method for resolving any disputes that may arise without having to go to court.
One of the areas where we see conflict over parenting plans is when there is a seemingly good reason for one parent to deny the other parent their time-share. For example, a child may be sick and express that they do not want to go to their other parent’s home. Or, the second parent may not want to take a child who is sick for their regularly scheduled time-share.
In California, each parent has not only the right but also the obligation to care for their children when they are ill. Parents do not have the legal right to deviate from the time-share schedule for a minor illness. When a child is ill, it may seem convenient to leave the child in the care of the parent who had the child in custody when they fell ill. However, the other parent may be placing an unreasonable burden upon the parent who happened to have the child in their care when the sickness arose.
Can children decide they don’t want to go to their other parent’s home during a minor illness?
Although it may be a challenge to gain compliance by an older child or teenager, the law is pretty clear. A child’s preference is not sufficient reason to deny regularly scheduled time-sharing
Children’s feelings do count, of course. A sick child may be cranky and unhappy, and it may seem unkind to force a cranky, unwell child to move to the other home when doing so seems sure to inflame those feelings. On the other hand, remember that sick children can be prone to “cabin fever,” so a move might be just the thing to help reduce feelings of illness and frustration.
Your parenting agreement might include a contingency plan for a child’s illness on time-share day. It may be that you trust your children’s other parent’s judgment and believe they will not use a minor bout of the sniffles as a barrier to access for you. In such a case, you could agree that children will not be swapped to the other home when they are sick but that the time-sharing will be made up as soon as practical. When writing up such a contingency plan, be sure to take each parent’s schedule, travel time and other issues.
Communication is key
Whenever a child is sick, you should communicate thoroughly with the other parent. Part of this is practical, as you will need to coordinate care and medication. Set up a medication log that you can both access.
Part of this is legal, however. If your children’s other parent has shared legal custody, meaning that they share full decision-making authority with you, you owe them a duty to keep them informed.
Parents can negotiate a great many things in their parenting plans, including what should happen if a child gets a routine illness. Whatever you decide should be implemented with enough detail that each parent understands their obligations and that those obligations can be enforced. At the same time, it is important to be flexible and act in your children’s best interests at all times.