Ask a Divorce Lawyer: Violating custody orders

Question: My boyfriend has a 4-year-old son. He shares 50% custody with the child’s mother. The mother is in contempt of court since she violated the custody orders and moved two hours away and out of the county. In the past, she last left the child with his dad for nearly 4 months with no contact, frequently misses picking up her son when her week starts, is late dropping the child off, etc. 

Now the mother is saying she has already enrolled my boyfriend’s son in school, which she cannot do. My boyfriend contacted a lawyer several months ago and was told that there was nothing to be done right now since the circumstances were not directly affecting the child. Is this correct? 

The father would like to have full custody of the child. The mother is apparently not stable enough to care for this child. My fear is that my boyfriend is going to get some bad advice and end up sprinting for the courtroom at the last minute because someone told him to wait. What should he do to save his child?

Answer: When you say your boyfriend has 50% custody, I do not know if you mean that he has joint legal custody and/or an equal shared placement schedule.  Often times, people confuse the two.  Legal custody refers to the parent’s legal right and responsibility to make decisions for a minor child pertaining to health, education, and religion. Physical custody, often referred to as placement, is the time that the child will spend with each parent.  

If your boyfriend has joint legal custody, she was required to consult with him prior to making any decisions relating to his education which she obviously failed to do. The dispute as to where he goes to school should be addressed prior to him attending any school.  Once he is actually attending, the Court may be reluctant to pull him out of the school; especially if he is doing well.   
Since I do not practice in California, I do not know whether moving 2 hours away and out of the county is a sufficient distance to trigger a notification of intent to move.  Most states have statutes that require a parent to file a notice of intent to move with the court if he or she plans to move more than X miles away.   If a notice of intent to move notification is required, there is likely a statute that allows your boyfriend to object and petition the court for a change in placement.  A domestic litigation attorney licensed in California would be able to tell you what the California statutes require.   
Of particular concern to me is the inconsistency in placement you describe.  When you say she left the child with his dad for four months without contact, do you mean the child was with your boyfriend and she failed to pick him up for her placement times for a period of four months without contact?  If so, your boyfriend should contact an attorney to seek a modification of placement.  This instability may be rooted in a drug or alcohol problem which could put his son in imminent danger.
 
There are quite a few issues that your question triggers.  As such, you should contact a domestic litigation attorney licensed in California immediately to discuss your concerns. 

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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