You have a parenting plan that spells out what overnights the child is going to spend with you and what overnights your child is going to spend with the other parent. The judge reviewed and ratified the plan and made it a court order. There shouldn’t be any problems, right? After all, the judge has spoken by signing the order. It’s as clear as day, and we all know that if you violate an order from a judge you can get into trouble.
Unfortunately, sometimes it’s not that simple. Sometimes we have to continuously deal with a parent who refuses to adhere to the custody agreement and violates the judge’s order. This article deals with what we do to enforce a custody agreement. How do we get the other parent to comply with the agreement so that exchanges and timesharing can go off without a hitch?
Goals When Enforcing a Custody Agreement
Before we discuss the specifics of how we actually go about enforcing your custody order, let’s take a moment to make sure we know exactly what our objectives are. For most people, the objectives are:
- To get the other spouse to comply with the agreement in the short term and in the long run.
- To get make-up timesharing if appropriate.
- To get the other spouse to understand that not following the rules has consequences and is not a good idea.
In most cases, you’re going to have to deal with the other parent for years. If your child is only five years old and the other parent is already violating the custody agreement and making your life difficult, it can be deflating to think that this situation could potentially continue for another 13 years. Imagine trying to maintain a stable home environment for 13 more years knowing that the other parent might break the custody agreement at any time, throwing the home situation into complete disarray.
That’s why for most people the goal is not simply to correct the custody issue immediately or to penalize a past bad act by the other parent but rather to get the other parent to fully comply with the agreement for the foreseeable future and preferably forever. To do that, you have to make the other parent understand that when they violate the rules and the judicial order they will be called upon to face the consequences.
Of course, in cases where the other parent has failed to honor your timesharing and you’ve lost days or weeks of time with your child as a result, you will also want the court to order make-up timesharing for you.
With these goals in mind, let’s go over a typical course of action to enforce a custody agreement and to get compliance from the other parent.
- Filing a motion for enforcement of the agreement and a motion asking the court to hold the other party in contempt of court.
To get the ball rolling, your attorney is going to file a targeted motion with the court. This motion will allege that there is an order in place, that the order spells out rules about how timesharing is supposed to managed, that the other parent is willfully and intentionally violating those rules, and that the situation has caused you to shoulder costs and burdens that you shouldn’t have to if the other parent would simply respect the custody agreement. These motions ask for two things from the judge, one, that the judge enforce the prior agreement and, two, that the judge hold the other party in contempt of court or admonish the other party or order the other party to pay your attorney’s fees or prescribe any other remedy that might get the offending party to be more compliant in the future.
We find in many cases where a party is acting inappropriately by restricting timesharing that the threat of making that party pay the other parent’s attorney’s fees can serve as a strong deterrent to future bad acts. After all, it’s one thing to run around like a goof and rack up attorney’s fees to defend yourself, but it’s another thing when you not only have to pay your own attorney but some or all of the attorney’s fees for the other parent because of your bad actions.
And, of course, these motions often ask for additional timesharing or make-up timesharing.
- Object to the referral to a general magistrate (recommended) now that the case is filed. As a matter of course, however, most courts will automatically refer this sort of motion to a general magistrate if the case is otherwise closed. General magistrates are attorneys or other members of the bar who have been appointed to be helper judges, so to speak. While there’s nothing inherently wrong with magistrates, it’s often recommended to continue to bring an enforcement action in front of the main judge within the main jurisdiction. This is because if you have another parent who is acts inappropriately on multiple occasions it can be useful to return the case to the same judge, the circuit judge who has the power to preside. While magistrates can help, ultimately they make recommendations that have to be reviewed again by the judge, and the other parent may have the ability to appeal the decision of the magistrate to the other judge. It’s easier to just keep it all in front of the original judge.
- Set the matter for hearing quickly: You want to set your motion for rehearing in front of the judge. On a motion for enforcement, it is your burden to prove to the judge that there is an order and that the other parent has violated the order. Once this is proven, then the burden shifts to the other party to explain exactly why they felt compelled to violate an order that had been signed and ratified by a judge. The length of the hearing may vary depending on the circumstances, but usually you’ll want at least half an hour for the hearing if not an hour. Part of this depends on the circumstances and the factual basis of your particular case.
- Attend mediation (if required): In some jurisdictions there is a requirement to mediate even before getting a hearing in front of the judge on a motion for enforcement or motion for contempt for violation of a parenting plan. Check your jurisdiction. If in your jurisdiction mediation is required, then you’ll want to coordinate a mediation with the state or through a third-party mediator and with the other parent.
- Prepare for the hearing: When the hearing time nears, you and your attorney will prepare for the hearing. Preparation on your end involves two parts. First, you will gather any exhibits or other pieces of evidence that your attorney can use that will be helpful to prove your case. Commonly in enforcement and contempt matters regarding parenting plans and timesharing, we see text messages, e-mails, and other communications between the parties. In some cases third-party evidence from witnesses might be helpful. And in some cases, pictures or official documents from schools are relevant. This will depend on your particular case. Secondly, you will need to be prepared in order to testify. Your attorney will work with you to prepare your testimony so that you can communicate in front of the judge about your particular issue. Your attorney may also prepare an affidavit of the fees and costs that he incurred in order to prepare for the hearing. Remember, there was an order and the other parent violated it, and it is reasonable to ask the judge to order that some attorney’s fees be paid. This does two things. It helps ease the pain of you having to pay your own attorney’s fees and it also lets the other parent know that acting foolishly will sting.
- Attend the hearing: Finally, it’s time to attend the hearing. Your attorney will often give an opening statement to the judge followed by a statement from the other party’s attorney. Then your testimony will be given and then the other parent will testify.
Enforcing the Agreement: What the Statute Allows You as a Remedy
The statute provides certain remedies when the other parent fails to honor the timesharing schedule without “proper cause.” Following are things that you may ask the judge and that the judge has the authority to order for you at the hearing. These include:
- An order that the parent who did not provide or did not exercise timesharing to pay the non-offending parent’s court costs and attorney’s fees for the enforcement proceeding (discussed above).
- Order the offending parent to attend a parenting class.
- Order the offending parent to perform community service if so doing will not interfere with the child’s welfare.
- Order the offending parent to bear the financial burden of timesharing if the non-offending parent and child live more than 60 miles away from the offending parent.
- On the request of the non-offending parent, modify the parenting plan if so doing is in the child’s best interest.
- Impose any other reasonable sanctions.
- Order that the offending parent be held in contempt of court. Contempt of court penalties can include costly fines and even incarceration!
- Order that reasonable make-up timesharing be granted to the non-offending parent.
As you can see, the statute gives you the option of going back in front of the judge when the other parent violates your timesharing agreement and asking for remedies that fulfill the goals discussed at the beginning of this article, specifically fixing the situation in the short term so you have timesharing when you’re supposed to and that you know when your child’s going to be with you, making it less difficult to plan your activities. Putting pressure, both financially and emotionally (considering there is a threat of incarceration) on the other parent is a powerful incentive for them to be more reasonable and to act less foolishly and inconveniently toward you. Finally, getting make-up timesharing allows you to retrieve time with your child that was unfairly taken away from you by the other parent.