So you’ve “settled” your child custody issue and you have a schedule. You may have a schedule in a Separation Agreement, or you may have a Court Order that dictates when and where you get to see your kid(s).
This post will focus on remedies for the situation where your ex-spouse is playing games and does things that keep you from seeing your kids when the Agreement or Order says that you can. If you have a Separation Agreement which has been “converted” into a Court Order by Incorporation, then the available remedy is Contempt of Court, the same as it is for those with a “regular” Court Order. For those folks with an Incorporated Separation Agreement, the rest of this post will apply to you. For those of you with a Separation Agreement that was not incorporated into the Divorce Judgment, your remedy is Specific Performance (via a Breach of Contract lawsuit) as opposed to Contempt. After the Specific Performance is ordered by the judge, if there are repeated violations, that Order is then enforceable by Contempt just as with any Court Order.
Contempt is a remedy where you ask a judge to enforce a Court Order. You’re basically telling the judge that your ex won’t follow the Order, and you’re asking he or she to do something to your ex as punishment. The punishment can include jail, but in the child custody arena, it is rare that a judge will incarcerate someone for violating a custody order, at least on the first offense. Usually if a person is found to be in willful contempt, the judge will award some “make-up” time with the kid(s), order that the custody provisions be complied with in the future and threaten the offending party that if they violate the Order again, he or she may go to jail.
It is important to note that this post is primarily useful for those folks who are in high-conflict situations where the child(ren) are being used to settle a score with the non-custodial parent. For the majority of reasonable folks out there, they can work out their minor schedule problems and quirks without need for court. However, there are situations where the parent who is given primary custody abuses that power and control and uses the child(ren) as a weapon to settle the score with the non-custodial parent. In those instances, court may be the only option. I am of the belief that if a custodial parent will not follow the judge’s orders and repeatedly takes time away from the non-custodial parent, taking them to court until they get the message is the best, and most efficient, way to solve the problem. It makes no sense to me to continually ask the other person to stop violating the Order and argue about it over and over. Instead, I think letting them explain to a judge why they feel the judge’s Order doesn’t have to be followed is the quickest way to solve the problem.
If you’re like most folks, the custody schedule language in your document is terrible. The reason is that a lot of attorneys simply do not know what they’re doing when drafting custody provisions. The key to good, enforceable Court Orders is specificity and detail. There are too many Orders out there where the custody provisions are too general and vague to be enforceable. An example is this phrase: “Parent X shall have visitation at the times and places as agreed upon by the parties.” If you are having problems with your ex about a custody schedule and you agreed to this language in your schedule, it’s your fault. Or your attorney’s fault. It’s somebody’s fault, because that language is useless – it is unenforceable. If you have this language, or similar language requiring “agreement” with your ex on the visitation, stop reading and call an attorney to file a Motion to Modify Custody so that you can get a Court Order with language that is specific enough to be enforced.
Why does specificity matter? Because in a Motion for Contempt (also known as a Motion to Show Cause), you must indicate what the Court Order said and specifically what the other party did to violate it. In the above example, the reason you are wasting your time filing a Contempt Motion is that the Order doesn’t contain any specific dates or times that you will have the kids, so it is impossible to prove a violation. Had the Order said “X will have the children from Friday at 6:00 p.m. until the following Sunday at 6:00 p.m. on an every other weekend basis beginning on June 24, 2012,” then you could point to a specific weekend that was taken from you and prove that a) it was your weekend and b) the other parent didn’t let you have the kids.
Another reason specificity matters is that it takes “interpretation” out of the equation. For example, imagine this clause: “Parent X shall have the children during the first and third weekends of each month.”
This seems pretty straightforward, right? It’s easy to tell when the first weekend of the month is, right? Not so fast. What if Friday occurs on April 30 and Saturday occurs on May 1? Is that the “first weekend” of the month of July? Dad may think it is, but Mom may have a different opinion. You can easily see how this situation could end up in court. Dad schedules a trip with the kids during what he thinks is his weekend, but Mom says “that’s not your weekend.” She keeps the kids, they don’t go on the trip, Dad files a Contempt Motion and they go to court. It is highly unlikely that a judge is going to hold Mom in contempt under this scenario because the clause that Dad is trying to enforce is ambiguous. The clause does not define “weekend” well enough to be able to establish which weekend was the “first” one in May. Had the Order simply been specific and said “Parent X shall have the children during the first and third weekends of each month. For purposes of this clause, the “first weekend” of the month is defined as the first weekend in which Friday, Saturday and Sunday all fall within the same calendar month.” As an attorney, I personally don’t like rotating weekend schedules that try to define the “first” and “third” weekends or “first, third and fifth” weekends because those kind of schedules are just breeding grounds for disputes, but you get the idea. A lot of anxiety and anger can be avoided with proper drafting and specificity. Of course it is almost impossible to remove all ambiguity from a custody order, especially when dealing with parents who insist on trying to find every little possible ambiguity to exploit, but with careful drafting and attaching calendars to Orders, many of the problems can be prevented.
If you are a parent who is prevented from seeing your kids because your ex is playing games with the Order language, or just violating it because he or she is angry, one thing you can do is file a Motion for Contempt. For some situations, the only way to stop the offending party from violating the Order is to take them to court and let the judge make it clear to him or her that Court Orders must be followed and there are consequences for not doing so.