Is Your Ex Not Allowing Parenting Time with Your Child?
If your ex is not allowing parenting time your child, can you hold them in contempt? The short answer is yes. Everything in the field of family law often draws a response from the lawyer which sounds like “it depends.” The reason for the “it depends” relates to the parenting order itself and whether clarity exists. One cannot be held in contempt if there is not a clear order lacking ambiguity.
There was a time in court that we would enter orders that would allow the parents to set the schedule themselves. Something like “Mary and Jack shall facilitate parenting time in the best needs of the child.” Well, what exactly did that mean? And if Mary thinks it is in the best interests of the child to see Jack once a week (or less) and Jack thinks he should see his daughter every day, then clearly, we have a problem. Every one of these cases came back into court to have the judge decide what was in the child’s best interest regarding parenting time, so the court changed the rules and now everyone is required to provide a very detailed parenting schedule.
When Problems Arise Look to the Parenting Agreement
Parenting agreements today are different. They are very specific, setting out days and times, detailing each holiday, and essentially every detail of parenting. It seems overwhelming at first and if parents are getting along and able to work things out, then great, you are not required to follow the parenting plan. There is no “parenting plan” police that goes around and monitors whether you are following the drafted plan. But, if a problem arises, then everyone can fall back on the parenting schedule like a roadmap, and then it must be followed.
Is There a Clear Order Detailing the Behavior Required of a Parent?
Parents who cannot see their children when they want, oftentimes come back into court and ask the judge to hold the other parent in contempt. The judge will do that, but only if there is a clear order detailing the behavior that the other parent violated. What does that mean?
For instance, if your parenting plan does not say how Henry comes into dad’s possession at the start of dad’s parenting time and dad thinks that mom should drive Henry over, and mom thinks dad should come and pick up Henry, then there cannot be a violation if mom refuses. There is no clear order stating how Henry comes into dad’s possession.
Assessing Whether There is a Violation
Think about the problem and assess whether there is an actual violation (is there a court order, clearly written), or does the parenting agreement not address the issue at all? One problem that came up this past summer was the COVID problem. Kids weren’t necessarily going to school, so when the parenting agreement says that dad picks up Henry from school on Friday, some parents relied on a strict interpretation of the parenting agreement and wouldn’t let dad pick up from their home, since the agreement said the pick up was “from school.”
Is that petty? It sure is, but it is not uncommon. A parent filing a contempt petition over that set of facts would likely be unsuccessful. The judge of course will make arrangements for a different order stating how dad will pick up Henry from mom’s house but cannot really hold mom in contempt because the order was not violated.
Another problem during COVID was when one parent would not turn over the child for the other’s parenting time. They were either afraid of either leaving their house because of the coronavirus or felt that the transfer of the child increased their child’s risk of exposure to the virus. The parent was not necessarily being vindictive, just scared. Which brings us to the second part of holding a person in contempt.
Was Parent Willful in their Failure to Comply?
You first must have a clear order that establishes the violation, and the second part is whether the parent was “willful” in their failure to comply. The first element is your burden of proof and the second element is the other parent’s proof. Once the court finds that there is a clear and unambiguous court order, the burden switches to the other person to show that they essentially had a good reason for violating the order. If the court believes there was a good reason, then no contempt, even though the order was violated. If the court does not believe that the violation had a good faith basis for failure to comply, then contempt.
Even before COVID, there were parents who did not “force” their child to go on parenting time because the child did not want to go. Absent some serious problems on behalf of the child, this excuse does not work. When did kids get to decide what they want to do and what they did not want to do? The parent who does not want to force their child to go on parenting time has a hard time keeping out of contempt for not following a parenting plan.
Can you imagine a parent’s day going like this?
Parent: “Do you want to go to school today?”
Kid: “Nah, I think I’ll stay home.”
Parent: “Ok, I’ll let the school know.”
Does that work in real life? Of course not. Your child must do many things that they do not want to and are forced to do it by their parents.
- Do they get to stay up all night eating pizza in bed if they want?
- How about hanging out on the street corner drinking beer with their friends?
- Do you “force” them to come in at a reasonable hour?
- “Force” them to eat their veggies and go to bed so they can get up for school?
- “Force” them to do their homework?
Of course, you do! If you must force your child to follow the parenting plan and go on parenting time with the other parent, then I guess you will have to force them. Kids do not get to decide what goes on in their life. You are not their friend; you are their parent.
Enforcing Your Parenting Plan with a Contempt Action
Parenting times must be complied with and it is interesting how some judges do not hold a parent in contempt for it. It only sets up the non-complying parent to keep doing it and eventually, the other parent has no parenting time. But if you want to fight for your rights, unfortunately, the only way to do it is in court. Some parents are successful in getting the police involved to force court orders and although the family law court frowns on having the police at the door for parenting exchanges, sometimes it is the only way.
Keeping a log of missed parenting time helps when asking the court for contempt, but do not wait too long before bringing it to the court’s attention. You need to act when it happens, not a year later. The court would be hard-pressed to do something after a lot of time has passed.
When a violation has occurred, always write the other parent about it so you have a record. If the other parent responds, you will have a fairly good idea of their excuse when it gets into court. If they ignore the text or posting on a parenting app, you can at least show that you sent it. Above all, try and maintain a cool head and if you keep missing parenting time, file a petition with the court asking to change or the parenting schedule altogether. If you are having problems picking up from the other parent’s home at 6:00 on a Friday evening, a change to picking up the child from school will cut the other parent out altogether. A skilled family law lawyer can assist you in creative ways to obtain your parenting time so that the other parent has little or no way of interfering.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/contempt-for-not-following-a-parenting-plan/