If one parent disregards a custody agreement, there are some definite dos and donts for how you should respond. Here’s some advice from a child custody lawyer in San Mateo, CA, of what to do (and what not to do) if your ex-spouse violates a custody order.
What Should You Do if Your Ex-Spouse Violates a Custody Order? Answers from a Child Custody Lawyer in San Mateo, CA
Document Every Violation
Whenever your ex-spose does something that is in violation of the custody order, document it. This will come in very useful later if you end up taking legal action and need clear proof of what has been happening. The goal is to collect anything that will help to show that a violation isn’t just a one-time incident but a series of repeated offenses. Documentation will go a long way toward backing you up if you need to show a pattern of behavior.
Include the date, time, and description of what happened. Take photos if there’s anything to get a visual record of. Save screenshots of texts and emails. Get notes from others who are aware of what happened, as witnesses to the behavior. For example, if your ex fails to return your child on time, log the date, time, and details of what happened, and save any communication between you and your ex-spouse about what happened.
Communicate with Your Ex-Spouse
Of course, before you go straight for legal action, try talking with your ex-spouse! There could have been a misunderstanding rather than a deliberate violation of the custody agreement. Respectful communication is the best way to determine if that’s what happened. If at all possible, don’t let words of frustration or anger creep into your conversation. Accusatory language will quickly derail attempts at communication.
Don’t accuse; just stick to the facts. State exactly what behavior that you’re concerned about. Remind them of the terms of the custody order. Ask for their cooperation in sticking to the order. The end! (And don’t forget to keep a record of the conversation: save texts or emails, or write down exactly what was said immediately after a face-to-face conversation.)
Review Your Custody Order Carefully
Take another look at the wording of the custody order. You want to make sure that what you think it says is actually what you think. It is possible that the legal language of the order is unclear and you and your ex-spouse are interpreting it differently.
Check sections that give specific details about pickup and drop-off times, how holidays will work, anything related to your child’s education and healthcare, and anything else that’s outlined in the custody order. If you find anything that’s unclear to you, or that you think could be misunderstood, check with your attorney and get some advice.
Consider Mediation as an Option
If you’ve tried respectful communication several times and the problem just keeps continuing, mediation could be a solution. Mediation is when a neutral person helps you and your spouse work out an agreement without getting the court involved.
The goal is cooperating to work out a solution, which could be any number of things. It could just be an open discussion to help resolve misunderstandings, or it could mean a revision of the custody arrangement if both parents think that’s best. Mediation is often quicker and less confrontational than going to court, so can be a better option for dealing with violations of custody orders.
File a Contempt Motion with the Court
If communication and mediation are not working, it might be necessary to file a contempt motion with the court. Filing for contempt lets the court know that your ex-spouse has deliberately violated the custody order. This is when you will need that evidence you’ve collected each time your ex-spouse has violated the custody order. The court will want to see how serious the violation is and if there is a pattern of violating the order.
The court will take a look at the evidence and consider what the response should be to your ex-spouse’s actions. Penalties could be fines and/or mandatory counseling. In extreme situations, your ex-spouse could be looking at jail time. Filing for contempt is a serious step to take, but if nothing else has worked, it is the next logical step to take.
Request a Modification to the Custody Order
If it becomes clear that the current custody order isn’t effective because violations are happening repeatedly, you might request that the order be modified. The judge may agree to change the order as long as you can show that it’s in the best interests of your child.
For example, the court could modify the order to increase your parenting time and decrease that of your spouse or to limit your ex-spouse’s role in making decisions for your child. If your ex-spouse has shown ongoing noncompliance with the original order, it is likely that the court will agree to your request for modification.
Protect Your Child’s Well-being
Whenever the custody order is not followed, it can be very unsettling for your child. Not knowing what to expect in their environment, in their routine, and from the adults they love has emotional and psychological repercussions for any human, but especially for children, whose minds and emotions are still developing.
Keep open lines of communication with your child. Reassure them with your words and manner and actions that they are safe and that you are caring for them. Consider getting help from a child therapist or counselor, to provide another stable, calm voice to speak into your child’s life.
Enforce the Custody Order Through Law Enforcement, if Necessary
Call the police if the custody violations are posing an immediate risk to your child’s safety. If your ex-spouse refuses to return your child, or takes them out of state without your permission, get the authorities involved right away.
Keep in mind that police involvement will be a distressing experience for your child, so it is generally best to call on law enforcement only if there is immediate risk of harm or other danger to your child. If you do expect that police will need to get involved, let your attorney know as soon as possible. Your lawyer will be able to counsel you on your rights, on options that you can take, and on pitfalls to avoid.
Consult with a Family Law Attorney
All lawyers have spent years studying the law, and a family law attorney has years of experience in applying the law to family matters. While you certainly can handle some matters relating to violations of custody orders, a family law attorney will be aware of ins and outs of the law that you would not necessarily know without research.
There is often more than one way to deal with a situation like a custody order violation; this is where having someone with experience can be very helpful in identifying the potentially positive outcomes or pitfalls or each option. It can also be very helpful when you’re in the middle of a stressful situation to have a lawyer’s help with the details of requesting a modification or filing a contempt motion.
If you are dealing with a custody order violation, contact the Seeley Family Law Practice, APC, in San Mateo, CA, to learn more about your legal options.