Ask a Divorce Lawyer: Does a third party have standing to enforce a custody order?

Question: My boyfriend’s ex-wife kept the kids on Christmas past when they are due back to their father. We repeatedly said that we expected them to be back at the time mandated by their custodial agreement. 

Is there anything we can do since she did not have them back by 5:30 that night, but dropped them off a few hours later? Or are just a few hours unenforceable, not that big of a deal in the court’s eyes if she’s a few hours late? 

This is not the first time she’s planned travel that interferes with his custody and without his consent. 

 Answer:

As a third party, you do not have standing to enforce your boyfriend’s custody order. He does and should consider the following: A few hours’ parenting time missed may seem insignificant, but if it is a chronic problem (a few hours here, a few there really add up) or if you fear a slippery slope (next time, it will be a day missed), you do have options. These may include: 

Document. Be sure to document when you will exercise parenting time and what happens if parenting time goes awry. Confirm the dates you intend to exercise parenting time in writing. Include contact information where you and your children can be reached in the event of a last-minute schedule change. Keep a journal to document your concerns – Were your children late? Were they hungry? Did they have their coats and mittens? How did the exchange go? This is somewhat therapeutic, and it will also refresh your memory for court testimony. Be precise and professional, and avoid any nasty naming calling – writings from you may be admissible in court as substantive evidence or for impeachment. 

Research your resources. Research the resources in your area for parenting time and custody enforcement. Parents are often surprised to learn that many states do not require a court motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators exist. These resources are often less costly and more efficient. In Michigan, for example, parents who have missed visitation with their children may file a written complaint with the friend of the court, an agency-like body under the family court’s direction, to request make up time within 56 days of the missed visit. These resources are less intimidating and usually do not strain the parent-child-other parent relationship as much as a    full-blown custody battle before a judge does. You should consult with a lawyer in your state to learn about the resources available to you.

Show Cause Motion: If your ex simply refuses to follow your court’s order, consider filing a motion to have your judge hold her in contempt for disobedience. The judge will order her to comply, perhaps with make up parenting time, and you will create a record of your denied time in the event you need to modify the order later. The procedures for these motions vary by jurisdiction, so be sure to contact a lawyer for assistance.

Motion to Modify Custody/Parenting Time: If your ex purposely denies your time, if your children are unhappy or if you suspect something about your current order just does not “work” and a change would be better, consider filing a motion to modify physical custody or parenting time. The standards vary by state. In general, your unhappiness with the order is not enough; you must show a proper cause or change in circumstances since the last order to justify the change.  Some states require a higher burden if you are not a joint physical custodian. These motions generally require more time, in and out of court, than the resources mentioned above and thorough preparation. The long- term benefits could be worth the effort, however, if you are legitimately unsatisfied. Be sure to consult a lawyer who practices family law in your state, and schedule an appointment to at least  review your current order and the facts in your case as they apply the law. Do not pinch pennies here. You need a realistic viewpoint if you are going to invest money, time and emotions for a custody motion.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Maryland. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area for additional information or representation. Thank for your submitting a question to Cordell & Cordell, P.C.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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