When Your Ex Won’t Follow the Custody Order

A few days ago, I was in court arguing over a child custody order and I thought of this quote:

“The best laid plans of mice and men often go awry.”

Robert Burns

While this 18th Century Scottish poet probably wasn’t talking about child custody orders (although he may have had baby mama drama who knows), I think this quote applies. The court, the lawyers and the parties spend a lot of time deciding who will have custody of the children after divorce or separation. Yet, I think we spend just as much time dealing with the issue of one or both of the parents not following that child custody order.

Sometimes the violations are big. Sometimes they are small. Regardless, I know that when your ex doesn’t follow your child custody order it can be annoying, and in some cases, harmful to your children. However, before rushing into court or to your lawyer’s office, let’s take a step back and examine why your ex isn’t following the custody order, discuss how to document it, and then what you can file with the court to fix it.

First, I will first go through 5 questions that may help to explain why your ex isn’t following your child custody order. Those questions are:

• What type of custody arrangement do you have?
• Did the child custody order set you up to fail?
• Have you spoken to your ex about the violation of the child custody order?
• How do you and your ex communicate about custody issues?
• Do you follow the child custody order?

After that, I’ll discuss how to best document these violations so that, if you do have to go to court, you can win your case.

Finally, I’ll discuss what types of court filings may be best to address these violations so that they don’t occur in the future and the possible results.

Also, if you haven’t already, check out my article about child custody terms that you need to know as I will be using that language here. Plus, they really are child custody terms that you need to know. Get it? It’s in the title . . . You get it.

What type of custody arrangement do you have?

Before we talk about why someone isn’t following a custodial arrangement, I want to first discuss what they are in violation of. In short, there are four types of custody arrangements. Which arrangement you have will decide what you can do when your ex doesn’t follow it. Those are:

1. Verbal agreement;
2. Parenting Plan;
3. Written custody agreement that was made an order of court; and
4. A court order that was prepared by a judge after a hearing.

Verbal agreements are not child custody orders that are enforceable in court.

A lot of parties, particularly if they are civil (or don’t want to pay legal fees), may only have a verbal agreement regarding the regular physical custody schedule or holidays when they first separate or divorce. Then something happens. For example, one party gets a significant other or the other gets a new job, and the verbal agreement is no longer followed. Sound familiar?

If this is your situation, you are going to have to file something with the court to get an order as to what your custodial arrangement should be. Your custody arrangement needs to be in writing to be enforceable in the court system. If your ex is no longer following your verbal agreement, you are going need to file a custody complaint to obtain a written custody order.

Parenting plans alone are also likely not enforceable in court.

You may be asking, what is a parenting plan? A parenting plan is a document that you and your coparent review and complete to help maintain consistency of routine and discipline between households. While it may also address your regular physical custody schedule, parenting plans also covers things such as bedtime, what to do when a kid gets sick at school, emergency contacts, etc.

Don’t get me wrong, I think parenting plans are great. They help parents get on the same page when it comes to raising their children. By reviewing these plans with your ex, it forces you to discuss these topics and make some decisions. I think that is so important. In fact, I’m thinking about creating one for this site (If you think I should let me know in the comments!)

However, a parenting plan is not automatically enforceable in court if one parent violates it.

Here’s why. Generally, parenting plans are a document that the parents review and agree upon. They don’t even need to be signed. And, more importantly, they aren’t always submitted to the court for review and approval. Unless it is a court order, the court can’t enforce the terms.

Moreover, the courts are generally concerned with legal custody, physical custody, and a holiday custody schedule for the children. If your parenting plan doesn’t include those provisions, the court isn’t likely to consider this a full custody agreement to be made an order. Again, if it isn’t an order, violations of it won’t be addressed by the court.

Violations of custody agreements that are made a child custody order of court can be addressed by a judge.

If you’ve been following my blog for awhile (Thank you!) you know my thoughts on custody agreements. They are the best thing for your kids and your wallets. Most of my custody cases end in agreements and that is a very good thing.

So what is a custody agreement? In general, a custody agreement sets forth how the parties are going to allocate legal and physical custody. It will also often include a holiday physical custody schedule as well as some additional provisions about telephone access, vacations, communication between parents, etc.

When I prepare a custody agreement, both parties and counsel (if there are two lawyers) sign it. After that, I submit it to the court for approval, and a judge signs off on it and makes it an order of court. You may be asking: what does an order of court mean?

This means that the agreement is simply now an order. In other words, it has more teeth. When an agreement becomes a court order it must be followed unless the parties agree that it does not. So, if your ex is not following this custody order, you can go to court and ask the judge to order them to do so.

A judge’s decision about custody is likewise enforceable in court.

Sometimes parents just can’t agree on the best custodial arrangement for their children. When that happens, those parents have a hearing before a judge who decides for them. That judge’s decision then becomes an order.

Judges don’t like when one or both parties violate their orders. If I were them I wouldn’t like it either. They spend a lot of time preparing them. Therefore, if you ex is not following your child custody order, you can go back to court and ask that the judge enforce it.

A disclaimer about child custody agreements and child custody orders made by a judge before we go further.

A custody agreement that is made an order and a judge’s decision that becomes an order have the same legal affect. Therefore, for the rest of this article when I say child custody order, I mean either one of these types of custodial arrangements. Got it? Good.

Ready to learn more? Let’s keep going.

Did the custody order set you up to fail?

Sometimes your custody order is doomed from the start. This is generally for two reasons: (1) it is/was too vague; and/or (2) it did not consider what you and your ex can actually do given your lifestyles and work schedules.

Your child custody order is too vague.

Sometimes, clients will come to me requesting that I prepare a very vague custody agreement. Those types of agreements may not have a specific regular physical custody schedule and/or a detailed holiday schedule. For example, a vague custody agreement will have language such as “the parties shall share physical custody of the children as agreed” or “the parties will allocate time during the holidays as agreed.” I usually get this request when the parties are amicable and believe they will be able to work out any issues that arise in the future without the help of counsel or the courts.

I don’t recommend these types of agreements. Why? Because they are begging for someone to violate them!

While it is great that you and your ex are on good terms right now, this may not always be true.   For example, what if you get remarried, causing a strain in the parenting relationship? What if he or she wants to move to another state and you object? What do you do when you have a custody agreement that doesn’t say who should have the children for Christmas and its December 23^rd?

Having a detailed child custody agreement doesn’t mean that you can’t modify it as needed. For example, if both parties agree that the Thanksgiving custody exchange should be at 12 p.m. instead of 2 p.m. this year that is fine.  In fact, I think it’s great when parents can work together to make these types of changes. 

But, if such an arrangement can’t be worked out, then both parties know they must follow what the custody order says otherwise they are in violation of it. No need to call lawyers or file emergency petitions to sort it out. Doesn’t that sound a lot less stressful and expensive?

Your child custody order doesn’t consider what you and your ex can actually do given your lifestyles and work schedules.

Does your child custody order actually consider what you and your coparent can do? Sometimes, parents can forget that their work schedules and lifestyles just don’t allow for certain types of custody arrangements. 

For example, in a shared physical schedule, both parties would be responsible for getting the children to school on their days.  What if dad lives an hour away from the school? Do you think that it is likely that he will have a hard time getting the kids to school on time on his days, resulting in the children being tardy? Or, what if Mom works until 6:00 p.m. and her custody time is supposed to start at 5:00 p.m.? How could she not be late every time?

These types of real life factors need to be taken into consideration, both in a custody agreement or in a custody decision made by a judge. So what can you do if you find that your child custody order no longer works for you?

First, try talking to your co-parent and see if you can come to a modification before filing anything with the court. The court likes to see that you tried to work it out with the other parent before seeking their help. For example, maybe Dad should have more time in the summer and less time during the school year so the kids get to school on time. Or, maybe Mom’s custodial time is rearranged so that she sees the kids the same amount of time but in different blocks to accommodate her work schedule.

Have you spoken to your ex about the violation of the child custody order?

You may be saying, Liz seriously? Do you honestly think I haven’t sent an angry text (or ten) about how he or she didn’t follow the custody order? You’d be surprised.

I think sometimes parties complain more to me about how their co-parent doesn’t follow the custody order more than to the person not following it! This may be for a few reasons.

Sometimes I think clients just need to vent to someone about their frustrations with their ex. Maybe the violation really isn’t a big deal to them but, since I’m sort of a captive audience for all things divorce, they tell me about it. Does this sound familiar?

Or, perhaps you and your ex are getting along right now and you don’t want to rock the boat about him or her always being ten minutes late or forgetting to return the lunch box. Does this sound like your situation?

Finally, sometimes clients who are still in the divorce process stay quiet about one topic when they need their ex to do something in another area of the case. Are you afraid that if you make a big stink about him or her being late they will retaliate against you in the support case? Sometimes you have to know when to pick your battles.

How do you and your ex communicate about child custody issues?

One of the most often cited reasons for divorce is communication problems. Therefore, it is likely that you and the other parent have a hard time speaking to one another in a productive manner. While you may wish to never speak to him/her again, that is not possible if you have children. Your children need for you to be on the same page when it comes to topics such as discipline, routine and their general needs.

However, there are a few things you can do to address this problem. 

Seek help from a coparenting counselor.

You and the other parent may benefit from seeing a co-parenting counselor. These professionals can help you work through your communication issues and develop a plan so that you can successfully co-parent with one another even though you are no longer living in the same house. I recommend that most of my clients see a co-parenting counselor for at least a few sessions.

Use Our Family Wizard or other coparenting programs to communicate with your ex about your child custody order.

Second, you and the other parent can use co-parenting software to help facilitate communication. There are a few options on the market. However, the one that I recommend the most and even have seen judges recommend is Our Family Wizard (OFW).  OFW does a few things.  It allows parties to email, exchange documents, and share a calendar all through a secure site that requires a login. It will even review your emails before you send them to highlight foul or aggressive language.  Gmail doesn’t do that, does it?

I really recommend programs like OFW if your ex is constantly violating your custody order. This programs tracks when messages were sent, when they were opened, and when they were responded to. This avoids excuses like: “I didn’t see it,” “you never said that,” or “you didn’t respond.” Plus they can easily be printed out and submitted as evidence in a family court hearing.

Related: The 6 don’ts of social media and divorce

Related: Drafting your essential divorce team players

Do you follow the child custody order?

Did you read that headline and think, what me? Violate the custody order? I’m like Mary Poppins, practically perfect in every way. Again, you’d be surprised.

This is one of the first questions that I ask every client that comes and sees me with a complaint that their ex isn’t following the child custody order. It’s not because I don’t believe him or her or I think everyone is always guilty, it’s just that sometimes the answer is no.

Let me give you an example.

A client comes to me complaining that her ex did not give her notice that he was taking the kids out of state for the weekend. In their child custody order, if one parent takes the kids out of Pennsylvania, they have to let the other parent know where they are going and where they are staying. Thus, Dad’s actions are a clear violation of the order.

I ask her, have you taken the kids out of state without letting him know? Is that why he maybe thought it was okay? She says yes but it was just to the neighboring state (New Jersey, which is super close) and he knows that we always go to the Jersey shore on the weekends. He went to Maryland and that is different.

Is it?

While some violations are more serious than others, it is really hard to go to a judge and complain about one parent’s behavior when the other parent is also violating the order. This is particularly true if the parents are doing the same thing!

Harsh talk time. You don’t have the right to violate the custody order any more (or less) than your ex. You may think, but he or she gets away with it so why does it matter? Trust me it does. Particularly if you want to bring the other person to court for it.

I call this having clean hands. You want to go to court with clean hands, meaning that you have done nothing wrong. If you don’t have clean hands, instead of your ex getting yelled at, the judge is going to look at both of you with anger or annoyance. And then, he or she is going to yell at both of you for not following the custody order. Talk about a waste of time, money and emotion. Who wants to pay to get yelled at? Not me.

How do you document violations of your child custody order?

Okay, so you’ve established that your ex is not following the custody order. Even if you aren’t sure that you want to file something in court just yet, you should be documenting the violations. While most evidence in custody cases comes from the testimony of the parents, written evidence can be very helpful.

Why? Because it can prove what you are saying is true. Whenever you testify in court, the judge is deciding whether or not you are credible (i.e. telling the truth). Having other evidence supporting what you are saying will help the judge decide whether or not he/she wants to believe what you are telling them.

How can you document violations of your child custody order?

Here are some suggestions:

• Text messages and emails between parents: Be sure to print these out. Don’t expect to show your phone to the judge or hearing officer;
• Our family wizard or other parenting app messages: Again, these can prove not only that a message was sent but also whether it was read by the other side;
• Pictures: Not seen as much but may be useful. Again, make sure you print these out and don’t just have them on your phone or computer.
• Video or audio: Make sure you follow the rules of your state. See more about that below.
• Police reports, medical records and school records: Sometimes you may have to bring in someone from those agencies to authenticate these documents. If you need these types of documents in your case I suggest you talk to an attorney about how to do that.
• Calendar: I tell clients to get a blank calendar and document every time the coparent is late or doesn’t come for their custodial time. While the calendar may not be submitted as evidence, you can use it to prepare your testimony. Being able to say that your ex was late for 90% of his/her visits in a three month period is very helpful. Judges are more likely to remember a stat like that than a rambling 10 minute story.

A word about copies and submitting electronic evidence of your ex’s violation of the child custody order

I hear the same complaint from court staff at almost every seminar I go to: the parties don’t bring enough copies!!! Make sure that you have at least 4 copies of every document that you plan to submit at your hearing.

Again, don’t expect that a judge will look at text messages, photos, videos, voicemails or emails on your phone. They need it in hard copy form. This is because if you want to introduce those items as an exhibit, the judge and his/her staff need to be able to keep a copy in the event there is an appeal or if you have to come back at a later date to finish your hearing. Do you want them to keep your phone? I didn’t think so.

Finally, if you plan on submitting video or audio evidence, make sure that it wasn’t obtained illegally. Some states, such as Pennsylvania, require both parties to consent to such recordings. If you don’t have that consent and you videotape your ex anyways, you may be committing a crime. So, before you try to submit this “smoking gun” evidence that he or she is not following your custody order, make sure that it doesn’t get you in trouble in the process.

What can you file with the court when your ex won’t follow your custody order?

Okay, so you’ve kept your custody calendar and tried to work it out and your ex still won’t follow the child custody order. What should you do know? You have two options of documents you can file with the court: (1) a petition for contempt of your child custody order; or (2) a petition to modify your child custody order.

With that being said, let’s discuss each type of petition separately.

Petition for contempt your child custody order

What does contempt mean? Contempt is just a fancy legal word for when your ex won’t follow the custody order. So what is a petition for contempt? Simply put a petition for contempt is something that you file with the court saying that your ex is violating your child custody order and you want the court to do something about it.

People violate child custody orders all the time. As I said before, sometimes the violations are big and sometimes they are small. When you should file a petition for contempt is heavily dependent on what your ex has done to violate the order.

Again, let me explain with some examples.

Example #1: When to file for contempt of your child custody order.

You are supposed to have your children for Easter this year. You go to your ex’s house to pick up your kids. He or she refuses to let you have them. This is a big violation of the custody order. It’s also a pretty clear one. The order says you have Easter in the odd years. It is an odd year. If this was my case I would file a petition for contempt immediately.

Example #2: When I probably would not file for contempt of your child custody order yet.

Your ex was twenty minutes late dropping your children off after his/her custodial time last weekend. Would I file a petition for contempt for this one violation? No. What if they are late every weekend for three months? Yes. For smaller violations, I like to be able to show a pattern of the other parent not following the custody order. This is because one time can easily be excused. 15 times can not.

Example #3: When I probably wouldn’t file for contempt of your child custody order.

Your child tells you that the other parent says bad things about you. Is this a violation of your custody order? Maybe. Usually custody orders say that neither parent will talk poorly about the other in front of the children. However, this is a tough one. What proof do you have that the other parent actually said these things? How old is your kid? Violations that are merely based on the word of a child are difficult to prove and difficult to win.

What the court may do if they find that your ex has violated the child custody order.

The Court has a few options when it comes to resolving a violation of a custody order. Some examples are:

• Order that the non-offending parent get some custodial make-up time;
• Have the offending party pay the other party’s attorneys’ fees;
• Require the parents enroll in programs such as coparenting counseling, Soberlink (breathalyzer program), or Our Family Wizard;
• Fine the parent a monetary penalty for each time they violate the order again; and/or
• Put the parent in jail for a brief period of time (extreme circumstance and not available in all jurisdictions).

In general, the court’s reaction will be equal to the seriousness of the violation. This means that a parent that consistently violates the regular physical custody schedule is going to get a more extreme punishment, such as a fine or jail time. On the other hand, if it is the parent’s first time in court on contempt, they are likely going to get something less serious, such as an order for make-up time.

Petition to modify your child custody order

Sometimes filing petitions for contempt are not enough. If your ex is consistently violating the agreement you may want to consider filing a petition to modify to have your custodial arrangement changed. Generally, a court can not change the terms of your custody order when the only petition pending is one for contempt. Instead, you will also need to make a request to modify your custody order.

Remember, the standard for custody is the best interests of the child. If it is no longer in the best interest of your children to have a certain custody arrangement because your ex won’t follow it, then you need to file something to have it changed.

Also, a petition to modify may be necessary when the violations are because the current child custody order is just no longer workable. For example, what if your child is now in middle school and that school’s start time conflicts with your co-parent’s work schedule?

As a result, your co-parent simply can no longer follow the current custody order. You would hope that you and your ex could work this out without having to go to court. However, that is not always the case. Thus, a petition to modify may be needed.

So what should you do when your ex just won’t follow your child custody order?

Having an ex that violates a child custody order is almost as guaranteed as water being wet. While I usually tell my clients to not sweat the small stuff, sometimes you have to do something to get your ex back on track.

However, before you rush into court, make sure you first look at why they are violating it and then how you can document those violations. Then make sure that you are filing the most appropriate petition for your case.

Does your ex not follow your child custody order? What have you done to solve this problem? Tell me about it in the comments!