Brandon M. : Hello there.
Brandon M. : Hi, can you see this?
Brandon M. : Hi, thank you for your question. How is the non-custodial parent not following the custody schedule? What is he or she doing?
Customer: He is changing the schedual when he feels like it..and then he cursed at me when I picked up my son
Customer: We have court custody papers
Brandon M. : That helps a bit. Tell me a bit more... tell me about a time that he changed the schedule. Was he late? Was he early? Did he tell you beforehand? Did he ask your permission? Give me an example so I can better understand.
Customer: If I take him back to court do I have to physically go to the court house and file
Customer: He has him Tues from 4 to 8 and Fri 4 to 8. He decided to go to school on Fri. Nights so now I have to pay a baby sitter. And he does no over nights. Our son is 4 now so I would like him to have him one sat. Night a month
Customer: Sorry I type slow
Brandon M. : Thank you for those details, and take all the time you need when typing. I should start by clarifying that because the nuances of every situation are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, the question of how to handle a parent's violation of custody orders and bad behavior is unfortunately a common one. Since they are two separate questions, there are two parts to the answer...
Brandon M. : When a parent willfully and knowingly violates the terms of a custody order, it is contempt of court. Contempt of court is a criminal offense, and it may be prosecuted criminally. Additionally, it is a basis for modifying custody because it is presumed not in the best interest of the child to disobey the court's order.
Customer: Do I have to take him back to court
Brandon M. : The forms to file a petition for contempt can be retrieved from the court. There are also various outlets online that will help prepare a contempt complaint. I do not endorse any particular website, but an example would be the following website:
Brandon M. : https://lawhelpinteractive.org/login_form?template_id=template.2009-02-19.2462813156
Brandon M. : It is not always necessary to take a parent back to court.
Brandon M. : If the situation is that a parent is refusing to surrender custody of a child as ordered by the court, it is possible to contact law enforcement and ask them to retrieve the child for you.
Brandon M. : However, law enforcement oftentimes cannot respond quickly, or they will not take further action once the parent relinquishes custody. To ensure prosecution for contempt of court, the non-compliant parent must be taken back to court. That is accomplished by filing a petition for contempt. As I mentioned, the paperwork for a petition for contempt may be retrieved from the court or through an online website similar to the one that I provided.
Customer: So I just file the paper and take it to the court house?
Brandon M. : The first step is filing the petition with the court, and the case proceeds from there. That is correct.
Customer: And him calling me names in front of our son must be stopped
Customer: Hard to prove because only my son was there
Brandon M. : It's not illegal for one parent to call the other parent names in front of the child that they share together, but it's bad parenting and not in the best interest of the child. How to handle it in any specific situation depends on the circumstances, but you would usually start by asking the court to modify the existing custody order to specifically state that disparaging remarks shall not be made about the other parent in the child's presence, and that it shall be lawful for either parent to record their interactions. That way, there will be proof when it happens and it will be a violation of the court's order.
Brandon M. : Does that make sense?
Customer: Ok thank you so much...PS. if thats you in the picture..are you single..lol
Brandon M. : Sorry. That is me, but I'm taken :-)
Brandon M. : Did you have any other question?
Customer: One more. If our holiday schedule says from 8 am to 8 pm. Does that mean if his dad wants to get him at 1 and I say no. Will I be in trouble if I go out with my son
Brandon M. : Well, let me explain the law this way. Each parent is not only entitled to take custody of a child during their custody/visitation time, but they're also responsible for it. So when one parent is to take custody at a specific day and time, it is not only their right to do so, but also their obligation. The parent relinquishing custody is obligated to make themselves available at the exchange time and place, but they have no such obligation of availability at other times. So, for example, if "dad" is suppose to pick up the child at noon, and if at 2:00 p.m. he has failed to do so, the mother can't be expected to wait around indefinitely for the father's appearance; the mother would generally be within her right to take the child wherever she needs to go to ensure the child's care and safety, even if that means dad can't pick up the child later when he wants to do so.
Customer: Sounds great thank you. I will file the petition
Brandon M. : great. I hope that makes sense.