Custody and parenting time provisions are included as part of the divorce decree when the couple has minor children together. Typically, the decree and parenting plan set forth specific terms that the parents are expected to follow. These are legally binding terms. What do you do if the other parent is not following the decree? There are several steps you can take. Below is a guide on options when the other parent does not comply with the court order or parenting plan.
What to Do When Your Ex-Spouse Fails to Comply with a Custody Agreement
For Extreme Cases and Immediate Welfare Needs
If your child is in danger of immediate harm while with the other parent, you may need to contact child protective services or law enforcement. They can do a welfare check if you truly believe that your child is in imminent danger at this time. You may need to file for a protection order or an emergency custody order to protect your child. Your child’s safety is the number one priority.
For more information regarding emergency custody orders, see How Domestic Violence Affects Divorce and Custody Decisions Blog.
Has the Parent Violated the Order?
For non-emergency situations, the first step is to determine if there has been a violation of the court order. This starts with reviewing your court order and its terms. Sometimes a parent thinks the other parent has violated the order, but on a closer inspection of the order, they have not. For example, this sometimes happens with holidays when the exchange time for the holiday is different than the normal exchange time for that day of the week. Sometimes a review of the order and plan shows that there hasn’t been a violation. Especially if your relationship with the other parent is contentious, know the terms of your order thoroughly and refer back to your documents before telling the other person they are in the wrong.
Sometimes the answer to this question can be more technical than it first appears. Some terms in a court order have a different meaning under the law and to a judge than it does to a casual reader of the order. If you are unsure what a term means in a legal context, you may need to reach out to an attorney to help decipher what it means in a court of law.
Degree and Frequency of the Violation
If there has been a violation of the order, you have to consider the degree and frequency of the violation. If the other parent is almost always on time, but is late, they are technically in violation of the order. However, the judge is likely to give some grace if this is a one-off occurrence. It likely isn’t worth your time and money to bring an action for a minor violation that is a relatively rare occurrence. Give the other parent some grace if they are truly trying to follow the order and it is a simple mistake. The Court is unlikely to reprimand in this situation anyways.
On the other hand, sometimes you need to bring the action now before it becomes a greater problem. It can become a slippery slope if the other parent is the type of person that takes a mile if you give an inch. If the other parent starts to develop a pattern of violating the order, you may need to bring an action now before it escalates or before you are accused of agreeing to such changes by not enforcing your rights sooner.
Act Now or Act Later
There is a cost in time, money, and hassle in having to bring an enforcement action. Especially when the violation is financial, it sometimes makes sense to wait until the amount due to you is large enough to justify the costs of bringing the action. On the other hand, you have to be careful not to wait too long to bring the action. There is also a concept of laches where if you wait too long to enforce your rights, the Court may no longer be willing to allow the action to go forward. There is often a balance in waiting until the violation is severe enough that it is worth your time and money to bring the action, but not waiting too long that the Court would find that you were unreasonable in the delay in bringing it. For financial matters, the period of time to allow the debt to increase is often longer than is reasonable to wait to bring an action for the denial of parenting time.
For example, if a parent isn’t paying their share of child care costs, it might be reasonable to wait six months to bring the action. This way, you have multiple months of sending receipts and requesting payments and also a larger dollar amount that you are ultimately requesting. On the other hand, if the parent is denying you all parenting time without a legitimate reason, six months is often seen as unreasonably long to wait to bring your case. The Court may wonder why you didn’t bring your action sooner if you weren’t getting to see your children.
Keep in mind that sometimes it makes sense to bring an action earlier on, even if the cost seems to outweigh the results in the short term. Sometimes if you bring an action early on to show that you are going to enforce the order, it sets the tone for the order moving forward and prevents the other parent from thinking that the terms in the order are optional. In the situation, sometimes a show of force at the beginning is a short term loss for a long term gain.
Can the Situation be Remedied without Court Action?
Not every violation should be resolved through the courts. You should almost always first try to resolve the situation between yourself and the other parent. There can be an agreement to give make-up parenting time. One parent could agree to perform services around the other’s home in exchange for not paying their share of the child care. Sometimes there is a solution that works for both parents without getting the court involved.
Especially if the order was recently entered, you may also have your attorneys assist in reaching a resolution. Sometimes a little encouragement by the attorney to right a wrong can fix the problem without having to go back before the judge again.
Demand Letter
Another non-court option is the demand letter. This is generally a written document stating forth the violation specifically, the requested remedy, and the expected response time. It might include supporting documentation, such as receipts and a spreadsheet showing the specific amounts due. It gives a party a chance to review your specific claim and also the potential to respond with a resolution. This can be very formal, but it doesn’t have to be. The concept is the same whether this is a formal letter sent via certified mail or a more casual exchange through text messages between the parents. It is a chance to state your position and explore the other parent’s reasonings. Many legal disputes are handled via a demand letter without having to file a court action.
Mediation and Other Forms of Alternative Dispute Resolution
Mediation and arbitration are methods of alternative dispute resolution. The mediator is a neutral third party who helps the parents try to reach an agreement. The arbitrator is also a neutral third party but gives advice as to whom is in the wrong and what the remedy should be.
You likely participated in mediation as part of creating the original custody order if there was a dispute regarding custody or parenting time. It is a mandatory step in most contested custody cases in Nebraska and elsewhere.
If you and the other parent continue to have conflict, mediation might be a good way for you to find a solution that is agreeable to both parents. In fact, mediation is now required by some courts before you can even file your modification or certain enforcement actions.
Often the mediator that helped you with the original custody action is a good resource to see if they can reopen your case and help you try to find a solution at this time.
Types of Court Actions and Potential Penalties
While there are a number of court actions available, two of the most common methods of enforcement in family law cases are the show cause/contempt and the motion to compel. The specific names used for these actions can vary by court or jurisdiction by the idea is generally the same.
Show Cause/Contempt
The show cause/contempt is a court action that is brought where the other parent has to “show cause” why they are not following the court order. If they are found to be in violation of the court order without a good reason, then they are found to be in “contempt.” Thus, this action is often referred to as a show cause, a contempt, or some combination of the two terms. In Nebraska, this action is filed within your custody case. Thus, it is usually filed under the same court case number as the original custody order. You file the action alleging that the other parent is in willful violation of the order and the harm that the violation has caused. If the Court agrees that your request may show a violation, the Court sets the case for a hearing. You then have to serve the other parent with this court action and hearing date.
The consequences for being found in willful contempt of a court order in Nebraska can be severe. The Court can order up to six months of jail time. As such, the parent being accused of violating the order is entitled to a public defender if there is a potential of jail time and the parent is unable to afford an attorney on their own. The parent bringing the action (and thus not subject to jail time) is not entitled to a public defender.
However, jail time of six months is rarely ordered, except in the most egregious cases. Further, the Court will set a method to purge to avoid the jail time. For example, for not paying child support, the purge order could look like an order to pay a certain dollar amount of the child support by a certain date to avoid having to appear at the jail and start serving the jail time.
Motion to Compel
A motion to compel is another useful tool. It does not carry the potential penalty for jail time but can include a specific order for the parent to act by a certain date in order to remedy the violation of the court order. The Court can also set a bond amount to have an extra incentive against future violations. For example, a parent might file a motion to compel parenting time if the custodial parent is not allowing the parenting time. The other parent would need to show up in court and explain their reasoning. If the court finds the reasoning is not sufficient, the Court could compel the parent to resume the parenting time and grant make-up parenting time for the time missed.
This is an action that generally needs to be filed timely for best results. If you wait a month to file your motion to compel parenting time, the Court may see this as a reasonable timeframe to first attempt resolution and then file your action. If it has been a year since you’ve seen your children, the Court may be less inclined to grant the motion.
Attorney Fees
Both of these actions include the potential for being awarded attorney fees in the matter. If you are successful, the Court may order the other parent to pay all or part of your attorney fees for having to bring the enforcement action. Keep in mind that you still have the responsibility to try to collect this judgment from the other parent. If you are struggling to get them to pay what is already owed, it may continue to be difficult to actually collect the attorney fees awarded to you. Further, unless you and your attorney have entered into a contingent fee agreement, you are still going to owe your attorney for their services pursuant to the fee agreement whether the other parent pays a share of your attorney fees back to you or not. That being said, being awarded the attorney fees can help recoup your costs for having to bring the action and also discourage the other parent from violating the order again.
Other Options for Financial Matters
If the violation of the order is regarding financial matters, you have additional options if the dollar amount due is already included in the Order. Thus, if the order is specific that a certain amount is due by a certain date, you can use additional methods of enforcement to collect this judgment. For example, you can file a garnishment action to ask for the specific amount due in the court order to be withheld from the other parent’s bank account and then paid to you by the bank due to the garnishment court order.
Modification
There are times when the terms of the order itself are no longer working. Children grow older and circumstances change. If the order itself no longer makes sense in your situation, it may be time to file a modification action instead of an enforcement action. For example, maybe the child is now involved in activities where the exchange times no longer make sense with the child’s schedule. If there is now a lot of conflict as to who should be doing the transportation or what times the exchanges should be occurring, it may make sense to bring a modification action instead of trying to enforce terms in an order that no longer really fit your situation.
A modification may also be helpful if the parent is using the order to find excuses for not paying their share of financials other than child support. While child support is paid and accounted for through the Nebraska Child Support Payment Center, other expenses, like child care costs, have to be accounted for directly between the parents. A familiar tactic is for a non-paying parent to argue that they aren’t going to reimburse you for their portion of the child care costs because they argue that you didn’t pay your share of another cost, such as for an extracurricular. To help prevent this circular argument, it may make sense to modify your payment terms in your order. For example, your order could be modified to include that each party pays their share of the child care costs to the child care provider and their share of the extracurricular costs to the extracurricular activity provider directly. At least in some situations, this helps prevent some of these arguments of “I’m not paying you for that, because you owe me for this.” It also often makes it easier to show your evidence of what has and hasn’t been paid by whom if the action does go before the Court.
In Nebraska, you will be required to go back to mediation if you file a modification action and some courts require that you attempt mediation again first before you can even file the modification action.
No Action
Keep in mind that sometimes no action is the best course of action. If the underlying issue is that the other parent is just a jerk, keep in mind that no court order can change that. You can change the terms of the order and sometimes that helps make it harder for the other parent to treat your poorly. However, there will always be some way the other parent can be rude no matter what a judge says. For example, the other parent follows the order generally but is very rude and dismissive in communications. The parenting plan is later modified and includes a communication protocol against name-calling, etc. The other parent then switches to being overly friendly in the messages. While the message might actually end with stating “have a nice day,” the other parent knows that this is just their coded way of communicating something very rude and arguably not technically violating the new communication protocol ordered. This is one of those times where the best course of action may just be to ignore the rudeness of the other parent. It may not be worth the time and money of bringing the action if the other parent is otherwise generally compliant with the parenting time exchanges and terms. There is often a balance between knowing when to proceed with an action to protect your rights and knowing when the best course of action is to just ignore the other parent’s negative behaviors. In fact, sometimes if you don’t give them the attention they are seeking, they may put less effort into trying to annoy you.
Continue to Follow the Order Yourself
When the other parent treats the court order as optional, it can be really hard to feel that you have to follow the terms when the parent does not. However, this is what the Court expects of you. If the other parent starts denying parenting time at their whim and you start to do the same in response, the Court may not have sympathy for either parent. Even if you say that the other parent started it. If the other parent isn’t following the order, you still need to do so. Remain respectful and professional when the other parent does not. These are ones that you need to bring before the Court to show that you remained in compliance and the other parent did not. If you stoop to their level, the Court may not find in your favor, even if they were the instigator and you were just responding to their negative actions. This seems logical and simple, but it is easier said than done in many situations.
Evidence
A good case is made up of good facts plus the evidence to support it. Keep good records and follow the exchange provisions in your order. Most orders include a timeframe that you are expected to exchange receipts and make reimbursement. Provide the receipts and do so in a way that you can provide proof that you did so timely. Co-parenting Apps can be great for this as you can attach and archive receipts easily.
If you don’t use an app, then sometimes e-mail is a better method than text for financial information exchanges. You can keep a separate e-mail strand for each type of expenses and archive e-mails and receipts easier than scrolling through your text message history.
Make sure your communications with the other parent are something that you would not be embarrassed to show the judge. If you want the Court to be favorable with you, your evidence should show that you are respectful and business-like in your communications.
Other Resources
If the other parent is behind on child support, there are a number of additional options only available by contacting your child support office. These can include suspension of the driver’s license, non-renewal of the passport, tax refund interception, among others. You can apply for these and other child support enforcement services online. There is generally little to no fee for these services.
The Nebraska Supreme Court also has a number of forms and some information on their website to file for enforcement in Nebraska.
For what makes sense in your case, you need to consult with an attorney directly. Family law attorneys understand the legal system and can help you pursue the best course of action. Set up a consultation and review your options.
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
If you are looking for an attorney in a child custody, child support case, or divorce case in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Douglas, and Sarpy), contact our office to set up a consultation.