By Nelson Garcia, Esq., 301.563.6685
What if your Ex is not complying with the custody agreement for any reason, such as by continually picking up the child late or returning the child later than specified; keeping the child overnight despite the terms stating that she cannot; bad-mouthing you in front of your child; scheduling fun activities to do with the child during periods when the child is supposed to be with you. It may very well be time for you to consult a lawyer, especially if you have advised Ex of such non-compliances and your requests for compliance have gone unheeded.
The first thing to consider is whether the “agreement” is verbal, in writing, or court order. If oral, I recommend immediately putting it in writing and asking Ex to sign it as well. If the Ex refuses or insists on terms you feel are unreasonable and not in the best interests of the child, then I would strongly recommend consulting a lawyer. A lawyer can also assist you in drafting the agreement (often called a “Parenting Agreement”) and then, as is usually best, advising you on how to turn it into a court order. The advantages of a court order are explained below.
A usual best or only alternative is to file in Court in the form of a petition for custody or visitation. If you already have a court order relating to custody/visitation, then a lawyer could advise you on the best option for remedying the situation.
If your Ex isn’t abiding by the Court mandated visitation schedule, there are several things you can do. The action you take can range from mild to severe.
- Retain an attorney or get your current attorney involved, which would provide you the following advantages:
- Sending a strongly worded letter to your Ex. This can notify the other parent there is a violation of the court order taking place, as well as inform Ex you are willing to take legal action and that there will be penalties enforced if changes aren’t made. Such a letter should provide your Ex a serious wake-up call if he or she knows an attorney is involved and shows you are prepared to take legal action if need be.
- Advise you of the remedial court options available to you, such as proposing an amended court order by consent or filing a motion for contempt (and possibly sanctions) or motion for modification or both. In such situations proposing an amended court order is usually the best way to proceed as, even if it does not succeed, it will show the Court you have made a reasonable, good faith attempt to resolve the dispute before filing. The options also include, but are not limited to, asking the Judge to do the following:
- clarify/include the exact time and place of each visitation;
- reschedule missed visits (i.e., “make-up time;”
- include family therapy in the custody order or involve a mediator to help resolve disputes;
- award you attorney’s fees to be compensated, including additional fees and costs as punishment.
- modify the Order to award you sole/primary custody instead of the other way around, as well as child support and/or additional visitation or reduced visitation as the case call for, etc. plus advise you of the legal requirements for such, including “material change in circumstances.”
- The attorney can lend you support and help you through a difficult situation.
- Call the police. But only if clearly serious, such as not returning the child for several hours, especially if did not inform you or taking the child out of state for an indefinitely/undefined period contrary to the Order’s terms; filing a police report to document the violation is usually helpful. An attorney can also assist in this regard to “enforce” the Order immediately, whether through calling the police or filing a motion in Court to enforce, including an “emergency motion/hearing” keeping in mind such are very difficult to obtain. In addition, you should also keep in mind that in many cases, police officers are unwilling to get involved in a family law dispute unless the conduct rises to a criminal infraction (i.e., child abuse or parental kidnapping). The police may tell you to take it up with the Court.
Things You Should Never Do
- Take the law into your own hands, such as by attempting to retaliate/“punish” the Ex unless one of the remedial actions above such as requesting reasonable make-up time; keep in mind that it is possible for the Court to “retaliate” on your behalf;
- Violate the Order yourself;
- Turning your child/ren against your Ex; Don’t berate your spouse in the presence of your children.
- Anything that could reasonably be interpreted as emotional abuse either toward the Ex or minor child (turning child against your Ex is one example);
- Deny visitation just because the non-custodial parent is late with or not making child support payments.
Always keep in mind that Judges seriously frown on all the above, and they usually damage your credibility with the Court, plus otherwise make things a lot more difficult for you. No matter what your spouse has done, don’t stoop to that level.
Always take the moral high road. Don’t forget to document everything. Take careful notes of everything that transpires. Jot down what your spouse did and how you reacted.
Above all, your actions should be taken in the best interests of your child. Show that attitude in Court, and they will side with you favorably should you take legal action. With an experienced attorney on your side, you’ll be able to resolve your child custody issues.
Andalman & Flynn, P.C. serves clients throughout Maryland and the District of Columbia, offering compassionate, quality service and results-driven representation across a broad range of legal areas. With a concentration on disability benefits law and family law, the firm focuses on cases that impact the rights of everyone, and they are there for clients when responsive legal help is most critical. For more information about Andalman & Flynn, please visit our website or call 301.563.6685.