Violations of Court Orders.
You got the court order. Either the Divorce Decree or the Custody Decree. You thought the hard part was over. But now, your EX refuses to follow the Order. You’re at your wits end. What do you do?
The first question I have for clients in this situation is, “what part of the court order is your ex not following?” Does it matter? Doesn’t he/she have to follow it all? Well, yes, legally they do. But, there is more to this issue than meets the eye.
Let’s say, for instance, the part of the order your ex is not following is exercising his/her visitation with the kids (very common, by the way). The other parent is supposed to visit with the children from Friday-Sunday, for example, and many times they are simply failing to do so. This is a very common problem I hear from clients all the time. You can imagine their surprise when my response is typically to ask them, “is that really a problem?” Keep in mind they are angry. And rightfully so. After months of battling in court to get this Order, why should the other parent get away with not following it? But their anger can get in the way of seeing the big picture. Which is part of your attorney’s job, by the way, to see what you may not.
“What do you mean???” The client will often shoot back at me. What I explain to them is this — while I understand the anger in the other parent not doing what they are supposed to do, what I want to know is who is it hurting? Is the child(ren) upset? If so, that may be a real problem. But, if not (and many times it is not the case), I ask the client — technically, you are just getting more time with the kids you would not ordinarily have. And then it sinks in to the client…..maybe this is not an issue they want to fight over, and instead enjoy the extra time.
Now, granted, many clients need the break from the children. There is nothing wrong with that. It is not that they don’t want the extra time with the children, but rather that they have job commitments that require someone care for the child during the time the other parent is supposed to have them. In these cases, we discuss other childcare possibilities to see what the best solution is.
The whole point here is that it matters what part of the Order is being broken and whether that is truly a problem or not. In a lot of cases, the parents simply enjoy the extra time and do nothing about the other party’s failure to follow the order.
In other cases, however, the situation is entirely different. The other parent (or the ex) may be violating parts of the Order that need to immediately be addressed. For example, if the other party is harassing the client against a behavioral order, or is failing to pick up the children from school which is causing issues, or is failing to return the child at the scheduled time, these cases often necessitate returning to court.
The options in cases where violations of an order need to be addressed are to file a Motion and get a hearing in front of the judge. The type of Motion depends on the specific case, but often times it is a Motion to Show Cause. This means you are asking the Court to make the other Party explain why he/she should not be held in contempt of court for violating the order. Each violation must be presented individually, and the judge will want to know what remedy you are seeking – for example, monetary relief, or simply to compel the other party to act or refrain from acting. In rare cases, you may be seeking jail time for the other party (it is rare, but not impossible for the judge to grant this).
In any case, you will want to consult with your attorney for advice on your specific situation. In every case, we advise that you keep a journal if violations are frequent. Note the date, time, and what the violation is. Keep all text messages/e-mails that relate to the situation.
One last thing to keep in mind — judges expect the parties to work out their own problems and not rush to court over every little issue. In other words, don’t expect the judge to rule harshly over a minor violation – especially the first offense. But if the other party’s failure to follow the order is a real problem, specifically, putting you or your children at risk, you certainly have options, and you should speak to your attorney immediately so that he/she can assess the situation.
