Strategies if Your Former Spouse Refuses to Follow a Child Custody Agreement

Unfortunately, one of the most commonly occurring types of disputes that following the granting of a divorce decree involves situations in which a parent refuses to comply with an existing child custody order. Examples of how custody orders (and associated visitation or parenting time orders) are violated include:

• Failure to make child available for scheduled parenting time or visitation
• Failure to return child as scheduled from a parenting time visitation schedule
• Custodial parent's interference with noncustodial parent's visitation
• Noncustodial parent's interference with custodial parent's rights
• Attempting to poison child's attitude towards other parent
• Taking child out of the jurisdiction without permission

There are six strategies that can be employed when an issue arises regarding complying with the terms and conditions of a child custody order.

• Provide written demand for compliance
• File motion to enforce existing custody order
• File motion to alter or amend existing custody order
• File motion to sanction other parent
• Seek mediation
• Hire experienced custody attorney

Attempting to informally resolve an issue regarding a failure to follow is a commendable course. Indeed, if an informal resolution of an issue associated with an existing custody order doesn't occur and the matter ends up in court, a judge is apt to inquire as to what steps were taken to address the matter before court proceedings commenced.

At the heart of informally resolving an issue regarding a failure to comply or follow a child support order is the writing of a demand for compliance to the offending parent. Being able to document what has been attempted to resolve a custody issue in this manner is important.

If a parent continues to violate a custody order, or if the nature of the failure to comply is severe, a motion needs to be filed with the court to enforce an existing custody order. When this is done, the matter is brought before a judge for a hearing. Both parents have the ability to present evidence, including testimony, regarding issues surrounding the alleged failure to comply with the existing custody order.

A parent needing to take action against a counterpart who isn't complying with a custody order may seek to have that existing order altered or amended. A prime example is a situation in which a custodial parent improperly refuses the noncustodial parent to exercise his or her right to visitation or parenting time. Changing custody is one of the most serious sanctions a court can impose when there has been what usually is a persistent issue with complying a custody order or an extremely serious breach of that order.

A parent in compliance with a custody order can seek to have the parent violating the terms of that decree sanctioned by the court. (This references sanctions of less severity that changing custody, discussed a moment ago.)

Examples of sanctions a court can impose on a parent that violates a custody order include:

• Requiring the offending parent to pay the attorney fees of the parent in compliance
• Imposing a monetary sanction on the offending parent
• Making alterations to the terms and conditions of the existing child custody order, short of completely changing it

Mediation is being used with increasing frequency when post-divorce issues arise in regard to child custody orders. Mediation is a voluntary process. Through mediation, parents with custody disputes or issues attempt to settle them between themselves with the guidance and assistance of a trained, experienced mediator. The mediator doesn't make decisions for the parents; rather, a mediator provides information and space for the parties to discuss and negotiate the matters at hand.

In many ways, the admonition to retain legal counsel should have been at the top of the list. No matter which strategy makes the most sense in a particular situation, retaining a child custody lawyer is advisable when an issue arises regarding compliance with an existing court order.

The first step in retaining legal representation is schedule a free initial consultation and case evaluation with a child custody attorney. If you have any questions about child custody, telephone the Law Offices of Peter Van Aulen at 201-845-700 for a free initial consultation.