How often have you heard that about someone’s child custody order? How often have you said that about your own child custody order? We’re guessing it’s probably no surprise to anyone that this phrase or something similar is hardly uncommon in parenting agreement circles. The questions to ask are: Is this issue one of a minor loophole that needs to be closed to avoid some minor nuisances? Or, is everything completely out of control and wholesale changes need to be pursued?
It’s extremely difficult, if not impossible, to account for every single negative scenario a high-conflict ex-spouse may create when you craft your child custody agreement or have a custody order dictated to you. If an ex-partner wants to create conflict, they’ll find a way to create it, which is why you need to plan only as best as you can to minimize the opportunities for that to occur. (Consider buying our Custody Agreements E-Book to read about comprehensive coverage of issue for planning a parenting agreement.)
When the circumstances change and you really believe they necessitate consideration for a change in child custody, what can you do?
Well, if you have cause to file a petition with family court for a modification to child custody, that’s the very first step. We’ll use the terms “major” and “minor” very loosely as we lay out examples. In each case, the issues are likely extremely important and terribly frustrating.
Minor examples, in the grand scheme of things:
- Constantly being very late to child custody exchanges because a specific time and buffer zone are not detailed in the child custody order.
- Failure to communicate routine medical issues, illnesses, medications, etc. with respect to health issues in a timely fashion.
- Registering the children for extra curricular activities that will impinge upon your parenting time, without prior consultation and/or agreement.
- Failing to answer phone calls to the children or return calls after messages left, frequently and consistently interfering with reasonable telephone contact with the children.
Major examples, in the grand scheme of things:
- Serious custodial interference. Not showing up at all for child custody exchanges. Failure to turn over the children for scheduled holidays. Failure to make the children available for any court ordered custodial time.
- A provable harmful living situation at the other parent’s home, possibly including substance abuse issues, child abuse, neglect, malnourishment, failure to see the children get to school, etc.
- Child abandonment or other agreement from a parent to relinquish custodial or parental rights.
- A parent’s arrest and incarceration.
No matter the circumstances, you have to prepare to support your motion to show cause, file a petition for a change in the child custody order, and get ready to go to family court for a hearing. You need to present a convincing case that the child custody order, in its current iteration, is failing to perform as anticipated. Or, the parent against whom you’ve filed the petition is willfully failing to abide by its contents.
This is why it’s always advisable to keep a journal so you can keep a fresh record of what your experiences have been (and when) regarding the issues at hand. Evidence of the willful misconduct is essential. It’s surprisingly common that a high-conflict ex will document their intentions to willfully violate a court order via text messages or emails. Sometimes you can even prompt an acknowledgment by sending a notification of their violation of the court order, copying it to yourself, and using the fewest words possible. Remember to leave emotion out of such a communication. You are sharing a factual experience, such as,
“Please understand that I am making a note of your failure to drop off the children for my parenting-time week on Wednesday, September 15th, 2010. We were to meet per the court order at XYZ Superstore Parking Lot between 6PM and 7PM and you failed to show in violation of our child custody order.
You’re not making threats. You’re not getting emotional. You’ve simply made a statement of fact. This can often prompt a vitriolic, vulgar reply acknowledging what happened with whatever excuse they wish to provide. This, you will file along with the original email for future family court use.
The other option is a petition for contempt of court. If your court order is pretty comprehensive and you want to initiate enforcement proceedings, try a petition for contempt of court. Ask for specific sanctions against the offending parent and reimbursement of legal fees for having to bring the action.
It often takes a painfully long time to build a meaningful and compelling case. Having to endure these bad experiences in order to maximize the chances you’ll be successful in court is simply part of the process in a high-conflict divorce and custody situation.